Opinion
June 26, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Sandra M. Stuller, Aspen, for petitioner.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Robert L. Harris, Asst. Atty. Gen., for respondents James P. Wilcox and Industrial Comm.
SILVERSTEIN, Chief Judge.
Petitioner, Impressions of Aspen, Inc., appeals from a final order of the Industrial Commission affirming the decision of its referee granting full unemployment benefits to claimant, Walter Weller. We affirm the order of the Commission.
Claimant was employed by Impressions of Aspen as a salesman from January 1970 to November 1970. He left his job with petitioner to accept another position. Thereafter, claimant was separated from the second job due to a seasonal decline in business and applied for unemployment benefits. A hearing was held before a referee who found that claimant had voluntarily left his job with petitioner to take a better job and that he was therefore entitled to a full award of benefits. On review the Commission affirmed and adopted the order of the referee. Employer petitions this court to set aside the final order of the Industrial Commission on the sole ground that evidence was improperly excluded at the hearing before the referee.
The evidence before the referee established that claimant quit his employment with Impressions of Aspen to take a better job and that claimant was entitled to benefits under 1965 Perm.Supp., C.R.S.1963, 82--4--8(4)(g). Thereafter the employer sought to introduce evidence that one year after the claimant left its employ it was discovered that claimant had stolen property of the employer prior to his quitting. The referee refused to admit this evidence. The threshold question in determining claimant's eligibility for benefits was whether claimant had voluntarily terminated his employment with petitioner or had been discharged. Both prior to and during the hearing, petitioner admitted that claimant had not been discharged but had left voluntarily to accept another job. Under these circumstances, the referee was correct in excluding evidence of the theft as having no probative bearing upon the admitted fact that claimant's separation was voluntary. We find no abuse of discretion in that ruling.
Petitioner argues that evidence of the theft was relevent to claimant's subjective motivation for leaving. However, neither this court nor the Commission is at liberty to speculate as to claimant's subjective motivations since it is objectively ascertainable, from petitioner's admission, that claimant voluntarily left his job for another.
Order affirmed.
DWYER and ENOCH, JJ., concur.