Colorado Auto Body, Inc. v. Newton

• Decision Date: 23 May 1966
• Docket Number: No. 21726,21726
• Citation: 414 P.2d 480,160 Colo. 113
• Parties: COLORADO AUTO BODY, INC., and State Compensation Insurance Fund, Plaintiffs in Error, v. Lawrence C. NEWTON, Ryder Truck Rental, Inc., Continental Casualty Company andIndustrial Commission of Colorado, Defendants in Error.
• Court: Colorado Supreme Court

Page 480

414 P.2d 480

160 Colo. 113

COLORADO AUTO BODY, INC., and State Compensation Insurance

Fund, Plaintiffs in Error, v. Lawrence C. NEWTON, Ryder Truck Rental, Inc., Continental

Casualty Company andIndustrial Commission of

Colorado, Defendants in Error.

No. 21726.

Supreme Court of Colorado, En Banc.

May 23, 1966.

Harold Clark Thompson, Alious Rockett, Fred B. Dudley, Denver, for plaintiffs in error Colorado Auto Body, Inc., and State Compensation Insurance Fund.

Fugate & Mitchem, Darrell J. Skelton, Denver, for defendant in error Lawrence C. Newton.

Margaret R. Bates, Denver, for defendants in error Ryder Truck Rental, Inc. and Continental Casualty Co.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for defendant in error Ind. Com. of Colo.

DAY, Justice.

The defendant, Lawrence C. Newton, to whom we will refer as the claimant, was awarded compensation for temporary total disability by the Industrial Commission, hereinafter denominated the Commission. The Colorado Auto Body, Inc., to whom we will refer as Auto Body, and its insurer, State Compensation Insurance Fund, hereinafter called the Fund, bring writ of error to the judgment of the district court affirming the award of the Commission. Other defendants in error are the Ryder Truck Rental, Inc., and their insurance carrier Continental Casualty Company. They will be referred to as Ryder and Continental, respectively.

The facts which are necessary for an understanding of the assignments of error are as follows:

In February, 1959, claimant was employed by Ryder and sustained an injury to his back, for which he claimed and received an award for temporary total disability for approximately 25 weeks. Ryder filed a general admission of liability on this accident. In August, 1959, it was determined that claimant had no permanent disability as a result of the accident and that he was able to return to work. Thereafter, claimant left Ryder's employment and obtained and lost four different jobs before finally obtaining employment with Auto Body in February, 1962. Claimant testified that he had been experiencing difficulty with his back since leaving Ryder's employment and that the dismissals or resignations from all of the jobs he had held were traceable to his back injury.

Claimant's work with Auto Body involved polishing cars. He testified that from February, 1962, until November 12, 1962--the date on which the present award was based--he had experienced back trouble which required him to absent himself from work intermittently. On November 12th claimant stopped to pick up a buffer--a polishing machine weighing about 20 pounds--when he was seized with such severe and acute pains in his back that he was unable to stand erect. As a result, he was taken to a hospital, given emergency treatment and then released. He thereafter stayed at home for several days resting and taking 'pain pills.' When he returned to Auto Body to report back to work he was informed that some other person had been hired in his place.

In Feburary, 1963, claimant filed a petition with the Industrial Commission to reopen his claim against Ryder and Continental under the provisions of C.R.S.1963, 81--14--19, on the ground that his back condition had become worse. The Commission granted his petition, reopened the case and held a hearing on March 21, 1963. At the hearing, claimant related the occurrence of attempting to pick up the buffer while working for Auto Body on November 12, 1962. Counsel for Ryder and Continental thereupon filed a motion before the referee that Auto Body and the Fund be joined as party respondents in the proceeding. The motion was taken under advisement. Subsequently the referee entered a supplemental order on April 24, 1963, which in pertinent part provided:

'Hearing was held March 21, 1963 at Denver, Colorado.

'At the close of the testimony the respondent moved to join as a respondent employer, Colorado Auto Body, Inc. and their insurance company, the State Compensation Insurance Fund. This motion is based on the claimant's testimony that he sustained a new accident which aggravated a pre-existing condition on November 12, 1962 while employed by Colorado Auto Body, Inc.

'The Referee, having reviewed the file, finds that the respondents' motion is good and should be granted for the grounds heretofore stated.

'IT IS, THEREFORE, ORDERED: * * *

'That Colorado Auto Body, Inc., and their insurance company, the State Compensation Insurance Fund, be joined as respondents in this matter. * * *'

Auto Body and the Fund responded to the referee's order. They sought and obtained a complete transcript of the hearing held on March 21, 1963, and were also granted ample time to prepare for trial. On July 19, 1963, hearing was held in which Auto Body, the Fund, as well as Ryder and Continental, participated as respondents, and at which no objection was interposed by anyone.

In the course of the July 19th hearing, counsel for the Fund requested assurance of the referee that 'testimony taken at the previous hearing will be considered in the case of The State Compensation Insurance Fund and The Colorado Auto Body.' Counsel then said, 'Apparently no separate file has ever been made up by The Industrial Commission For our case but I don't know whether I should offer it into evidence or if you will consider it. I certainly want it all to be considered by the referee.' The referee responded, 'I will do that.'

At the conclusion of the hearing two grounds were asserted upon which the Fund on its behalf and that of Ryder predicated a motion for Dismissal of the claim:

(a) That the claimant did not sustain an accident arising out of and in the course of his employment by Colorado Auto Body, Inc.

(b) That if the referee should find that he did sustain an accident there, it was merely a temporary aggravation of a pre-existing condition which caused him no permanent or partial disability or any other medical causes or inconvenience except perhaps one or two visits to a physician.

The referee on August 13th entered an order which became the final order of the Industrial Commission. In pertinent part it reads as follows:

'Claimant's original accident occurred on February 8, 1959. Since that time he had complained of a consistent pain in the low back with radiating pain into his left lower extremity. Although he was able to continue to do heavy manual types of work during this period, apparently he was able to hold various jobs but always was forced to quit work when his back began to bother him. The November 12, 1962, incident apparently aggravated his pre-existing back condition.

'The Referee having reviewed the file and the testimony finds that the claimant was injured in an accident arising out of and within the course of his employment on November 12, 1962, while employed by the Colorado Auto Body, Inc., that this accident aggravated a pre-existing back condition, that his average weekly wage at the time of the accident was maximum, and that it is too early to determine the extent of permanent partial disability if any. The Referee further finds that the claimant could have returned to work on June 24, 1963. The Referee further finds that the claimant's attorney, Darrell Stelton, has performed valuable legal services on behalf of the claimant and that his attorney's fee should be set at $500.00.'

Orders for payments on account of temporary total disability and for medical expenses to be made to claimant then followed. There was a further order that the matter remain open for a period of six months to determine whether the claimant had sustained any permanent partial disability.

On January 23, 1964, in its petition for review before the Industrial Commission, the Fund reiterated the two grounds contained in its motion to dismiss before the referee; and then for the first time it objected to being made a party to the hearing by the following statement:

'* * * We also object to the Referee making the State Fund and the Colorado Auto Body, Inc. parties to I.C. No. 1--410--709 and ordering us to make payments on a claim involving Lawrence C. Newton vs. Ryder Truck Rental and Continental Casualty Company.'

In a further petition for review there was another ground added:

'* * * that the Industrial Commission did not have jurisdiction to enter an award against the respondents Colorado Auto Body, Inc. and the State Fund, inasmuch as the claimant has never filed a claim with the Industrial Commission for any alleged accident supposedly happening on November 12, 1962. There has in fact been no report to the respondent, Colorado Auto Body, Inc. by the claimant at any time.'

The contentions of Ryder and the Fund in their summary of argument before this court are essentially the same as those raised in the two petitions for review before the Commission. They are: 1. That the Industrial Commission exceeded its powers in joining Auto Body and the Fund in proceedings ostensibly to reopen a claim against Ryder and Continental; 2. That the Industrial Commission has never had jurisdiction over Auto Body and the Fund in view of claimant's failure to file a written claim against them...