dissenting:
As indicated in footnote 2 of the majority’s opinion, the Industrial Commission made a clear finding of fact that “[t]he claimant voluntarily left his employment with Brasch & Miller.” (Emphasis added.) However, the majority, sua sponte and without any discussion of the evidentiary record, concludes that “Gray was always employed until that point in December when he appeared ready to resume active employment status.” (Emphasis added, ante at 398.) There is no justification for the majority’s rejection of the commission’s finding of fact that the claimant voluntarily left his employment. Neither party to the appeal contested that factual determination, and the evidence is more than sufficient to support that finding.
On appeal from decisions of the Industrial Commission, the function of this Court is constitutionally “limited to a review of questions of law." Idaho Const, art. 5, § 9. It is only where the commission’s findings of fact are not baáed on any substantial competent evidence, thereby rendering the finding erroneous as a matter of law, that this Court may set aside a finding of fact made by the commission. I.C. § 72-732; Madron v. Green Giant Co., 94 Idaho 747, 497 P.2d 1048 (1972). The court’s action today is contrary to the rule laid down in Idaho Const, art. 5, § 9, I.C. § 72-732, and our prior cases.
As this Court stated in Holloway-Cook v. Albertson’s, 100 Idaho 384, 385, 597 P.2d 1074, 1075 (1979), there are certain evidentiary factors — “indicia of employment,” they were called — which need be evaluated in order for the factfinder to determine whether a person continues in an employed status, e. g., whether he was on the payroll, receiving fringe benefits, and still performing service to employer. In Holloway the question was whether unemployment benefits were available to claimants who had received notice of termination and who were no longer performing any services for the employer, but who were still receiving regular salary and fringe benefits from the employer as gratuitous transition assistance. Even though the claimants were not performing services for the employer, they were denied benefits because they were found to be still employed. “This conclusion [was] founded primarily upon the claimants’ continuation upon the employer’s payroll during this period with retention of all fringe benefits.” Id. at 385, n. 1, 597 P.2d at 1075, n. 1. The determination in that case that employment continued was a factual determination made by the commission and based upon the presence of certain “indicia of employment.” The Court in Holloway held that the “[fjindings of fact by this Industrial Commission are binding upon the court when sustained by competent evidence.” Id. at 386, 597 P.2d at 1076.
In the present case there was ample evidence to sustain the commission’s finding that there was no such “indicia of employment,” and that the employee had voluntarily terminated his employment when he *18went back to school: (1) the claimant performed no services for the employer; (2) he received no compensation while at school; (3) the previous work was manual labor— cement finishing — paid at an hourly rate; (4) he was not even close to the work site, being 250 miles away; (5) he had no contractual obligation to return to the employer, and the employer had no contractual obligation to rehire the claimant. The majority cites Holloway as support for the proposition that a person may be idle as to the employer, and yet still be employed. However, it needs no further discussion to make clear that Holloway, where the claimants were still on the payroll and were still receiving fringe benefits, was factually a very different situation than the one presented by this case. The evidence in the present case is quite lacking as to the existence of any “indicia of employment” after the claimant left for school. In any event, that is a factual question for the Industrial Commission, and it is clear that the commission’s finding that the claimant’s employment status terminated when he voluntarily left to attend school is supported by the evidence.
The majority opinion relies upon what it calls “the uncontradicted and unimpeached testimony of both employer and employee ...” to find “that Gray’s attendance at Idaho State was in the nature of a ‘leave of absence’ from work.” The majority then concludes that “this uncontroverted testimony, taken in conjunction with [the Department of Employment’s regulation stating that a claimant on leave of absence is not entitled to benefits] is indicative that the Commission’s finding of termination as of August, 1978, is without foundation.” If the only evidence in the record was the testimony of the employer and the employee that Gray was away on a “leave of absence,” then perhaps an argument could be made that there was no evidence to support the commission’s finding that the claimant voluntarily terminated his employment in August of 1978.1 However, apparently the majority has forgotten the other evidence — “indicia of employment” as we called it just last year in Holloway-Cook v. Albertson’s, supra — such as the fact that the claimant who had been performing manual labor at an hourly rate was no longer performing any services, receiving any compensation, had no contractual right, or obligation, for re-employment, and had left the area. The majority opinion inexplicably makes no mention of this “other evidence” in reversing the finding of the Industrial Commission that the claimant voluntarily left his employment in August of 1981. It is difficult to understand how that kind of evidence was sufficient to support the findings in the Holloway case but not sufficient to support the commission’s finding in this case, particularly in light of the fact that neither party to this appeal has questioned the commission’s finding that the claimant “voluntarily left his employment.”
The majority attempts to distinguish our very recent case of Andersen v. Brigham Young Univ., 101 Idaho 737, 620 P.2d 310 (1980), by stating that “Andersen did terminate his employment.” It is indeed ironic that the distinction which the Court draws rests upon a distinction of fact and not law. Had the majority not displaced the commission’s competent finding of fact by creating its own version of the facts, an attempt to distinguish the two cases would not have been necessary.
Having concluded that the evidence sustains the commission’s finding that the claimant voluntarily left his employment, the question still remains as to whether he should receive unemployment compensa*19tion. Barring other exceptions, a claimant is eligible for unemployment compensation if “[h]is unemployment is not due to the fact that he left his employment voluntarily without good cause.” I.C. § 72-1366(e). Good cause does not include termination to attend school. See Andersen v. Brigham Young Univ., supra. However, the claimant contends, and the commission found, that he was unemployed “due to” the unavailability of work, and not “due to” his voluntary leaving of employment, and is therefore entitled to benefits. That was the issue which the parties briefed and argued before this Court on appeal. Such an argument, as noted by the employment department’s appeal examiner “does not go to the point.” The claimant lost his eligibility for benefits when he voluntarily left his employment. I.C. § 72-1366(e). At the time he attempted to revive his employment, his status remained unchanged. The requirements for reestablishing eligibility are found in I.C. § 72-1366(7). That section provides that:
“A benefit claimant who has been found ineligible for benefits under the provisions of subsections (c), (e) or (f) of this section may reestablish his eligibility by having obtained bona fide work and received wages therefor in an amount of at least eight (8) times his weekly benefit amount.” (Emphasis added.)
Since the claimant had not obtained work and received wages equal to eight times his weekly benefit amount, he continued to be ineligible for unemployment benefits. Andersen v. Brigham Young Univ., supra. To hold otherwise is to ignore the clear legislative mandate of I.C. § 72-1366(7).
I would reverse the decision and remand the matter to the Industrial Commission with directions to affirm the decision of the Department of Employment.
. It seems, however, that such an argument would be weak at best. The claimant’s testimony that his attendance at school was merely a leave of absence, rather than a termination of employment, was undeniably in his own interest. The employer also had no reason to dispute the claim that Gray had left on a leave of absence. Recovery of benefits by the plaintiff would likely not have affected the contribution rate of the employer, since it was engaged in seasonal business. See I.C. §§ 72-1350, -1351. Such testimony of a definitely conclusory nature, and lacking adversary input, is certainly a feeble basis for stating that the commission’s finding was unsupported by the evidence.