Byouk v. Industrial Com'n of Colo., 14835.

• Decision Date: 23 September 1940
• Docket Number: 14835.
• Parties: BYOUK v. INDUSTRIAL COMMISSION OF COLORADO et al.
• Court: Colorado Supreme Court

105 P.2d 1087

106 Colo. 430

BYOUK v. INDUSTRIAL COMMISSION OF COLORADO et al.

No. 14835.

Supreme Court of Colorado, En Banc.

September 23, 1940

Error to District Court, Gunnison County; George W. Bruce, Judge.

Proceeding under the Workmen's Compensation Act by Mark M. Byouk employee opposed by the Colorado Fuel & Iron Corporation employer. To review a judgment sustaining an award of the Industrial Commission, employee brings error.

Affirmed.

Matt J. Kochevar, of Pueblo, for plaintiff in error.

Bryon G. Rogers, Atty. Gen., and Frank A. Bruno, Asst. Atty. Gen for defendant in error Industrial Commission of Colorado.

Fred Farrar, of Denver, for defendant in error Colorado Fuel & Iron Corporation.

KNOUS Justice.

In this controversy the Industrial Commission found that as the result of injuries arising from a compensable coal mining accident, plaintiff in error claimant sustained permanent partial disability equivalent to sixty per cent as a working unit, and ordered defendant in error employer, a self insurer, to pay compensation therefor to the aggregate extent of $3,640, the maximum permitted by section 357, chapter 97, '35 C.S.A., covering awards for compensation for permanent partial disability. Upon the basis of the weekly payments fixed, the award would be fully paid in about five years from the date thereof. Claimant, being dissatisfied with the commission's action, brought suit in the district court alleging that the award was erroneous and insufficient, in that it was for permanent partial disability only, whereas, as he contended, the commission should have declared him to be permanently and totally disabled and awarded compensation in accordance with the provisions of section 356, chapter 97, '35 C.S.A., applicable to such cases. Upon due hearing the court entered judgment sustaining the award of the Industrial Commission, and ordered that it be affirmed. Claimant brings the judgment here for review by writ of error.

In determining the extent or degree of disability of an injured workman upon the facts of each case, it is axiomatic that the Industrial Commission is vested with the widest possible discretion with the exercise of which the courts will not interfere. Rio Grande Motor Way v. De Merschman, 100 Colo. 421, 68 P.2d 446; Globe Indemnity Co. v. Industrial Commission, 67 Colo. 526, 186 P. 522. Also the presumption exists that in making an award for disability under section 357, supra, the commission considered and gave due weight to all of the factors therein enumerated. Industrial Commission v. Big Six Coal Co., 72 Colo. 377, 211 P. 361.

In the instant case the evidence disclosed that claimant was forty-two years of age at the time the award was made; that he had completed the seventh grade in grammar school; that his principal occupation has been that of a coal miner and that he has had no training or experience in any other line of work; that the injuries sustained by him involved the lower back, orthopedically and neurologically, and were permanent in character. It appears from the record that since his discharge from the hospital claimant has submitted to nine physical examinations by seven physicians, of whom three were employed by him, two by the employer and two by the commission. Two of claimant's physicians fixed his disability as permanent total, although one of them previously had testified that the disability was thirty-five per cent permanent partial, and the third, who fixed no percentage of disability, was of the opinion that in the future the claimant would be able 'to do ordinary labor to within a reasonable degree of what he was capable Before the accident.' One of the employer's physicians testified that the injuries permanently partially disabled the claimant as a working unit to the extent of twenty-five to thirty per cent, and the other said sixty-two and one-half per cent. The two examiners for the commission fixed the resulting permanent partial disability at fifty per cent and sixty per cent respectively. The claimant and his wife stated that since the accident he had been unable to perform even the lightest task. No witness contended, as of the time they testified, that claimant physically was able to work as a coal...