Casa Bonita Restaurant v. Industrial Commission of Colorado

• Decision Date: 19 February 1981
• Docket Number: No. 80CA0522,80CA0522
• Parties: CASA BONITA RESTAURANT and Liberty Mutual Insurance Company, Petitioners, v. The INDUSTRIAL COMMISSION OF COLORADO, Director of the Division of Labor, and Debra D. Penn, Respondents. . I
• Court: Colorado Court of Appeals

Page 1340

624 P.2d 1340

CASA BONITA RESTAURANT and Liberty Mutual Insurance Company, Petitioners, v. The INDUSTRIAL COMMISSION OF COLORADO, Director of the

Division of Labor, and Debra D. Penn, Respondents.

No. 80CA0522.

Colorado Court of Appeals, Div. I.

Feb. 19, 1981.

Zarlengo, Mott & Zarlengo, Al Zarlengo, Jr., Denver, for petitioners.

J. D. MacFarlane, Atty. Gen., Laura J. Reilly, Asst. Atty. Gen., Denver, for respondent The Industrial Commission of Colorado, Director of the Division of Labor.

Marlin W. Burke, Denver, for respondent Debra D. Penn.

BERMAN, Judge.

In this workmen's compensation case, employer and its insurer (petitioners) seek review of an Industrial Commission award to claimant of permanent total disability benefits. We affirm.

The record reveals that while at work on March 18, 1977, claimant, then 20 years of age, fell and injured her left knee, necessitating surgical removal of the knee cap. The insurer, admitting liability, paid claimant benefits both for temporary total disability and for permanent partial disability.

Claimant, who has a history of previous injury and surgery to her left knee, is a high school graduate. However, she has an I. Q. of only 84, with the mental development of a 13-year-old, and suffers other neurological impairments.

Claimant contested insurer's admission of liability. After the resulting hearing, the referee awarded permanent disability benefits in the amount of one-and-one-half percent as a working unit. On appeal, the Industrial Commission set aside the referee's order and awarded claimant permanent total disability benefits.

On this review, petitioners contend that the Industrial Commission erred in setting aside the referee's order, which order denied claimant permanent total disability benefits. We disagree.

Petitioners insist that the referee's findings and conclusions in this case are adequately supported by the evidence and, therefore, that they may not be overturned by the Industrial Commission. In support of this contention they cite Breit v. Industrial Commission, 160 Colo. 205, 415 P.2d 858 (1966).

Petitioners misread Breit. In Breit the Commission adopted, rather than reversed, the referee's findings. Thus, Breit, insofar as is germane here, stands only for the proposition that where the referee's findings are supported by the evidence, and where the commission adopts such findings, those findings will not be disturbed by an appellate court. Indeed, the Breit court repeatedly recognized that the Commission is the ultimate fact finder in a workmen's compensation case.

The Industrial Commission, as the ultimate fact finder, is not bound by the referee's findings, but may rule de novo on the weight and sufficiency of the evidence in a workmen's compensation case. Harrison Western Corp. v. Claimants in re Death of Hicks, 185 Colo. 142, 522 P.2d 722 (1974); § 8-53-106, C.R.S. 1973. And, the Commission's findings, where supported by substantial evidence, are binding upon appellate review. In re Death of Cline, Colo.App., 599 P.2d 973 (1979).

The question, therefore, is whether the order here at issue is supported by substantial evidence. In this regard, petitioners argue that the Industrial Commission erred in failing to give credit to the testimony of the only orthopedic surgeon who presented evidence in the case. In essence, his testimony was that respondent could return to her work as a waitress without any restriction.

However, "even if the expert testimony 'were undisputed, it would not necessarily be conclusive on the fact-finding body' the Commission." New Jersey Zinc Co. v. Industrial Commission, 165 Colo. 482, 440 P.2d 284 (1968). Thus, the Commission was not bound by the orthopedic surgeon's testimony.

Moreover, even were the testimony accepted it would not necessarily determine the issue of permanent total disability, for the testimony's substance goes only to claimant's orthopedic or physical condition. In that regard, the Industrial Commission stated, "it is not sufficient simply to look at the physical limitations of any claimant, but in the instant case, the overall condition of the claimant is a determining factor." (emphasis added).

Section 8-51-107, C.R.S. 1973, which governs awards for permanent total disability, does not specify what criteria apply to the determination of such disability. But, § 8-51-108, C.R.S. 1973 (1979 Cum.Supp.), governing determination of permanent partial disability, mandates that the director shall take "into consideration not only the manifest weight of the evidence but also the general physical condition and mental training, ability, former employment, and education of the injured employee." (emphasis added).

All portions of the Workmen's Compensation Act are to be read together. McBride v. Industrial Commission, 97 Colo. 166, 49 P.2d 386 (1935); Schenfeld v. Shaffer, 29 Colo.App. 425, 487 P.2d 818 (1971). Thus, the criteria contained in § 8-51-108 may properly be applied to a determination of permanent total disability under § 8-51-107. Indeed, since "the Industrial Commission is vested with the widest possible discretion" to determine degree of disability, Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087 (1940), the Commission, to exercise such discretion effectively, must be permitted to consider in their entirety "the facts of each case." See, e. g., National Fuel Co. v. Arnold, 121 Colo. 220, 214 P.2d 784 (1950); Colorado Fuel & Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 (1963).

Therefore, the Commission had the right to look beyond claimant's physical impairments to her "mental ... ability," including mental impairment, in determining the issue of permanent total disability. In that regard, the Commission had available the evidence presented by claimant's examining psychiatrist, who was also a neurologist. That testimony was to the effect that, whether from organic or mental origin, claimant was unable to use her knee in the manner required by her previous work or its equivalent, and lacked the mental capacity to train for better work. On cross-examination the doctor testified in part as follows:

Q. You don't know for a fact whether she is physically able to

A. (Interrupting) Physically and neurologically, yes, I have an opinion about that. I don't think she could really function as long as her mind says to her "that knee won't hold me up." Then, Counselor, I don't think anybody including God can get her back to functioning at that.

"(N)eurotic mental disability is as real as any other disability and, in the absence (as here) of evidence of malingering, is as much a personal injury." 1B A. ...