Black Diamond Fuel Co. v. Frank

• Citation: 64 P.2d 797,99 Colo. 528
• Decision Date: 28 December 1936
• Docket Number: 13910.
• Parties: BLACK DIAMOND FUEL CO. et al. v. FRANK et al.
• Court: Colorado Supreme Court

64 P.2d 797

99 Colo. 528

BLACK DIAMOND FUEL CO. et al. v. FRANK et al.

No. 13910.

Supreme Court of Colorado, En Banc.

December 28, 1936

Rehearing Denied Jan. 25, 1937.

Error to District Court, City and County of Denver; Frank McDonough, Sr., Judge.

Proceedings under the Workmen's Compensation Act by August Frank claimant, against the Black Diamond Fuel Company, employer and the Employers' Mutual Insurance Company, insurer. Judgment for claimant, and defendants bring error.

Reversed and remanded, with instructions.

YOUNG J., dissenting in part.

BOUCK J., dissenting.

Frank C. West, of Denver, for plaintiffs in error.

Paul P. Prosser, Atty. Gen., Louis Schiff, Asst. Atty. Gen., and O. A. Johnson and Harry S. Class, both of Boulder, for defendants in error.

HOLLAND, Justice.

August Frank, a claimant under the Workmen's Compensation Act (C.L. § 4375 et seq., as amended), was employed by the Black Diamond Fuel Company. His claim, filed August 4, 1933, was based upon an alleged injury occurring October 11, 1932, and states that in the course of his employment in the coal mine of his employer, he strained himself while helping to lift a mine car. A hearing, with claimant as the only witness testifying, was held Before a referee of the Industrial Commission December 20, 1933. By a finding dated January 12, 1934, the referee rejected the claim upon the ground that it was barred by amended section 84 of the Workmen's Compensation Act (C.L. § 4458, as amended by Laws 1923, p. 744, § 15), which provides that the right to compensation shall be barred unless within six months after the injury a notice claiming compensation shall be filed with the commission; the limitation not to apply if compensation has been paid to the claimant. Upon this finding, the commission entered its award rejecting the claim, which action later was affirmed by the district court. Upon review, the judgment of the district court was reversed by this court, and the case remanded to the district court to enter judgment directing the commission 'first to hold a further hearing solely on the issue of how much compensation should be awarded, and to make, on the evidence there taken, a proper award of compensation to the claimant.' Frank v. Industrial Comm., 96 Colo. 364, 43 P.2d 158, 162. Thereupon, the district court entered its order directing the commission '* * * to hold further hearing or hearings solely on the issue of how much compensation should be awarded to the claimant, the same to be based solely upon evidence taken Before such commission or the referee thereof upon the amount of disability that the claimant has sustained as a result of his accidental injuries. * * *'

From the statements of counsel for both claimant and employer, it now appears that in attempting to follow the mandate of this court and the order of the district court based thereon, uncertainty arose as to the extent of the hearing to be conducted. Claimant's counsel contended that the only question to be determined was the amount of compensation his client was entitled to receive and, apparently confident of his position, he offered no further proof of the other questions involved; namely, that the claimed injury occurred in the course of claimant's employment; and that compensation in the way of medical service was paid to him. Claimant further objected to the introduction of evidence on any of these matters by the employer and objected to employer's counsel going into the questions upon cross-examination. Counsel for the employer, faced with the decision of this court, holding that a compensable injury had occurred, although given some latitude in the matter, was not as free to proceed as the occasion required. To what extent this confusion, on the part of claimant, employer, and the commission, is reflected in the present award, cannot be estimated.

The only issue presented upon the former review was whether the claim was barred by the statute of limitations, which included the question of whether it was saved from the statutory bar by the payment of compensation, within the statutory period, if such could be said to have been paid by reason of medical services furnished the claimant. This court resolved that question in claimant's favor, upon, as then stated, a prima facie case made by his own testimony. Full opportunity to present these issues was not afforded the parties Before the referee, and neither party insisted upon the rights which the statute contemplates and provides in such cases. This situation arose largely, it appears, through a miscomprehension of the procedure to be followed in such matters. The record disclosing such a situation, it is evident that the commission did not have, or at least did not take, the opportunity to fully hear and determine the issues raised, and it follows that this court, in view of the partial evidence introduced, should not have precluded either party from following the issues first presented to a conclusion. This it did, by its holding, which it is claimed by defendant in error became the law of the case, in effect, that a compensable injury had occurred for which compensation had been paid. The showing made by claimant upon the original hearing was sufficient to have called for a full presentation of the claim and defenses thereto, the result of which should have disclosed: First, whether the injury occurred in the course of employment; second, whether it was compensable; and, third, whether the medical treatment received by claimant could properly be held to be the payment of compensation within the meaning of the statute. It follows that this court should have reversed the judgment, with directions to the lower court to set aside its judgment and transmit to the commission a statement of the issues not fully presented, staying its proceedings until the commission should hear and determine such issues and return its findings to the court. This would be in accordance with the provisions of section 4476, C.L.1921, which is as follows: 'If upon trial of such action it shall appear that all issues arising in such action have not theretofore been presented to the commission in the petition filed as provided in this act, or that the commission has not theretofore had an ample opportunity to hear and determine any issues raised in such action, or has for any reason, not in fact heard and determined the issues raised, the court shall, Before proceeding to render judgment, unless the parties to such action stipulate to the contrary, transmit to the commission a full statement of such issue or issues not adequately considered, and shall stay further proceedings in such action until such issues are heard by the commission and returned to said court. * * *'

Our former decision in Frank v. Industrial Commission, supra, is overruled. What we there said concerning the statute of limitations was correct but premature. That question arises only if it be first determined that there was a compensable injury; hence, on that point, that decision is then controlling only if the evidence upon which our conclusion there rested remains substantially the same. The judgment in the present case is reversed, and the cause remanded with instructions to the trial court to set aside its judgment, stay the proceedings, and transmit to the Industrial Commission the issues to be considered, with directions to fully hear and determine all questions presented, and return its findings on the same to the court for its judgment thereon.

YOUNG, J., concurs in part and dissents in part.

HILLIARD, J., concurs specially.

BOUCK, J., dissents.

BAKKE and KNOUS, JJ., did not participate in the consideration or disposition of the petition for rehearing herein.

YOUNG, J. (concurring in part and dissenting in part).

I concur in a part of the opinion of Mr. Justice HOLLAND and dissent in part. I think the case should be sent back for a determination of all issues, except that of whether the statute of limitations applies.

As I view the matter, the sole issue Before us when the case was Before presented was whether the statute of limitations applied. Frank v. Industrial Commission, 96 Colo. 364, 43 P.2d 158. In going beyond that issue and determining that a compensable injury had been sustained, when the commission had not acted upon that question, I think we determined issues not properly Before us, and in so doing circumscribed the parties on the second hearing, so that issues there proper for determination were not and could not be acted upon. I now believe it would have been logical and the better practice in the former case to have required the commission to determine whether claimant sustained a compensable injury Before determining the issue of whether his claim was or was not barred by the statute of limitations; but since the issue of the statute of limitations was raised and, as I Believe, correctly determined, our former opinion on that question should stand as the law of the case and the case should be sent back to determine all other issues involved, except that of the statute of limitations.

HILLIARD Justice (specially concurring).

On the theory that Frank v. Industrial Commission, 96 Colo 364, 43 P.2d 158, an earlier review in this same matter, constituted the 'law of the case', for which there is Colorado authority, I favored affirmance of the judgment here; but since, notwithstanding my view, the court on this presentation has determined that that decision is not to be regarded as controlling, and moreover has rejected the pronouncement there, my conception of the duty of a member of a bank of judges in such situation has prompted me to further consideration of the merits. As the result, details forborne, I now think we erred in...