Opinion
Nov. 12, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Taussig & Cobb, John Whitehouse Cobb, Boulder, for petitioner.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Robert L. Harris, Asst. Atty. Gen., Denver, for respondent Industrial Commission of Colorado (Ex-officio Unemployment Compensation Commission of Colorado).
ENOCH, Judge.
This is a petition for review of an order of the Industrial Commission (Ex-officio Unemployment Compensation Commission) denying unemployment compensation benefits to David E. Lohry, claimant. The order is set aside.
Claimant was an employee of McPherson Enterprises when he quit to accept a better paying job with Precision Construction Company. After working three weeks for the second employer, claimant was laid off.
The issue in the determination of claimant's qualification for unemployment compensation benefits was whether claimant quit to take a 'better job' as that term is defined in 1969 Perm.Supp., C.R.S.1963, 82--4--8(4)(g)(i) and (ii). The cause of the termination of the second job was the critical factor in this case, but the Commission failed to make any finding on this issue. The record reveals that at the evidentiary hearing the referee precluded claimant, who appeared Pro se, from explaining the cause of his layoff. The referee's denial of compensation, which was affirmed by the Commission, was based solely on the following finding:
'On this record, it is concluded that the Claimant left work to accept work elsewhere on a job that lasted less than 90 days and cannot therefore be considered to be a better job.'
Even though the second job did not last 90 days the claimant might still qualify for compensation if the termination was:
'. . . under conditions of which, in the judgment of the division, the worker had no knowledge at the time he accepted the job and over which he had no control . . ..' 1969 Perm.Supp., C.R.S.1963, 82--4--8(4)(g)(ii).
Whether claimant lacked this knowledge and control is a question of fact to be determined by the Commission. Gatewood v. Russell, 29 Colo.App. 11, 478 P.2d 679. In the absence of adequate findings as required by 1969 Perm.Supp., C.R.S.1963, 81--14--6(2), this case must be remanded. Wilson v. Industrial Commission, 30 Colo.App. 154, 490 P.2d 91; Tague v. Coors Porcelain Co., 29 Colo.App. 226, 481 P.2d 424.
The order of the Commission is set aside and the cause remanded to the Commission with directions to conduct appropriate additional hearings, to make adequate findings of fact, and to enter its order thereon.
SMITH and STERNBERG, JJ., concur.