Opinion
Herbert M. Boyle, Denver, for petitioner.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Robert L. Harris, Asst. Atty. Gen., Denver, for respondents Industrial Commission of the State of Colorado.
COYTE, Judge.
Mason M. White seeks review of an order of the Industrial Commission affirming the decision of a referee which determined that petitioner was entitled to 'No Award' of unemployment compensation. We affirm.
The record discloses that petitioner was employed by Hensel Phelps Construction Company as a carpenter working on the Chatfield Dam project. He commenced work on July 24, 1972, and was separated from his employment on November 23, 1972. Thereafter, petitioner filed a claim for unemployment compensation, which claim was protested by the employer on the ground that petitioner's separation from employment was becaue of repeated failures to report for work or call in. A deputy of the Division of Employment reviewed petitioner's claim and determined that no award should be granted. Petitioner appealed the decision to a referee. At the hearing, the employer's office manager testified that petitioner was absent from work 23 percent of the potential working days during the time he was employed. The absenteeism figure was computed in a manner so as not to penalize petitioner for working days missed because of inclement weather. This course of conduct culminated in a three-day absence in November 1972 which precipitated the employer's decision to terminate petitioner's employment. Petitioner explained the reasons for his absences and testified that he had notified his employer on each occasion.
In his decision, the referee found that petitioner was separated from his employment because of his unauthorized absence from work in November 1972. The referee noted that there was testimony which disputed the contention that petitioner's absence was unauthorized, but he found the testimony contradictory and concluded that petitioner caused his own separation from employment by his unauthorized absence. The referee determined that the case was governed by 1965 Perm.Supp., C.R.S.1963, 82--4--8(7), and regulation No. 39(c) and granted 'No Award.' On appeal to the Industrial Commission, the order of the referee was affirmed.
Petitioner argues that the order of the Industrial Commission should be reversed because the referee did not make an explicit finding with respect to each factor stated in 1965 Perm.Supp., C.R.S.1963, 82--4--8(7), and that the decision is not supported by substantial and competent evidence. 1969 Perm.Supp., C.R.S.1963, 82--4--8(7)(a), provides that separation from employment because of absenteeism falls under the optional award provision. 1965 Perm.Supp., C.R.S.1963, 82--4--8(7)(b), states that in granting an optional award, the Division 'shall consider but shall not be limited to a consideration' of various factors, including whether or not 'The claimant notified the employer in advance.' The statute does not require that the Commission make an explicit finding with respect to each of the enumerated factors, nor, for that matter, does it require that the Commission limit its consideration to the enumerated factors. Therefore, in the absence of a showing that the enumerated factors were not considered by the Commission, the omission of specific findings on one or more of them does not constitute error. See generally, Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 91 S.Ct. 814, 28 L.Ed.2d 136.
Further, the referee found that petitioner was absent from work for three days without notifying his employer and this finding is supported by substantial evidence. This evidentiary finding, in turn, supports the ultimate conclusion that claimant was entitled to no award of benefits. Thus, there are findings in accordance with the standards set by Tague v. Coors Porcelain Co., 29 Colo.App. 226, 481 P.2d 424. Industrial Commission v. Bennett,
Order affirmed.
PIERCE and SMITH, JJ., concur.