Opinion
No. 76-492
Decided March 31, 1977.
From award of full benefits on claim for unemployment compensation, employer sought review.
Order Set Aside
1. UNEMPLOYMENT COMPENSATION — Hearsay Testimony — Claimant's Sole Proof — Award of Benefits — Cannot Stand. Where in unemployment compensation proceedings claimant's whole case rested on her own testimony, and the sole proof of a "better job" offer consisted of her recitation of alleged interviews and telephone calls with third persons, the entire evidence presented by claimant to substantiate her claim was grounded on hearsay, and in such circumstances, the Industrial Commission award of unemployment benefits based thereon cannot stand.
2. Hearsay Testimony — No Contemporaneous Objection — Not Waiver — Objection — After Claimant's Evidence — Timely. Since hearsay evidence is admissible during hearings before Industrial Commission at the discretion of hearing officer, any objections based on hearsay would have served little purpose at the time testimony was offered in unemployment compensation hearing; however, after claimant had rested her case, the Commission entered an award based solely on hearsay testimony, and objection by the employer at that time was properly made; therefore, there was no waiver of the hearsay objection by virtue of the fact that it was not made contemporaneously with the testimony.
Review of Order from the Industrial Commission of the State of Colorado
Kelly, Stansfield O'Donnell, Fletcher Thomas, for petitioner.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, Louis L. Kelley, Assistant Attorney General, for respondents.
Claimant was awarded full benefits on her claim for unemployment compensation under the provision of § 8-73-108(4)(f), C.R.S. 1973. Employer appeals. We reverse.
[1] The principal contention on appeal is that the entire evidence presented by claimant to substantiate her claim that she had left her employment for a "better job" is grounded on hearsay. We agree with this contention. Claimant's whole case rested on her own testimony. The sole proof presented as to any other job offer consisted of her recitation of alleged interviews and telephone calls between herself and third persons. No corroborative evidence was offered. Hence, the Industrial Commission's award cannot stand. Allen v. Industrial Commission, 36 Colo. App. 330, 540 P.2d 358 (1975); Olivas v. Industrial Commission, 33 Colo. App. 78, 515 P.2d 110 (1973).
Claimant maintains, however, that the employer waived this objection by not making a contemporaneous objection to the hearsay testimony. We do not agree.
Generally, evidentiary rules pertaining to administrative proceedings are less stringent than those governing judicial trials. San Isabel Electric Ass'n v. Bramer, 182 Colo. 15, 510 P.2d 438 (1973). This liberality as to the admission of evidence allows hearsay evidence to be admitted in hearings before the Commission at the discretion of the hearing officer. See Johnson v. Industrial Commission, 137 Colo. 591, 328 P.2d 384 (1958); Williams v. New Amsterdam Casualty Co., 136 Colo. 458, 319 P.2d 1078 (1957). Therefore, any objections based on hearsay would have served little purpose at the time testimony was offered.
[2] However, after claimant had rested her case, the Commission entered an award based solely on hearsay testimony. Objection by the employer was then required. At that point, the employer did object. Hence, no waiver occurred.
The order is set aside and the cause remanded with directions that the Industrial Commission enter a no award order.
JUDGE VAN CISE and JUDGE KELLY concur.