Colorado Fuel & Iron Corp. v. Industrial Commission

• Decision Date: 05 November 1962
• Docket Number: No. 20141,20141
• Citation: 379 P.2d 153,151 Colo. 18
• Parties: The COLORADO FUEL AND IRON CORPORATION, Plaintiff in Error, v. The INDUSTRIAL COMMISSION of Colorado, and Joe Tamburelli, Defendants in Error.
• Court: Colorado Supreme Court

Page 153

379 P.2d 153

151 Colo. 18

The COLORADO FUEL AND IRON CORPORATION, Plaintiff in Error, v. The INDUSTRIAL COMMISSION of Colorado, and Joe Tamburelli,

Defendants in Error.

No. 20141.

Supreme Court of Colorado, En Banc.

Nov. 5, 1962.

Rehearing Denied March 11, 1963.

Welborn & Dufford, Elmer P. Cogburn, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for defendant in error Industrial Commission of Colorado.

Graham & Scheunemann, Denver, for defendant in error Joe Tamburelli.

FRANTZ, Justice.

By reason of circumstances called to its attention, the Industrial Commission, on its own motion, reopened the claim of Joe Tamburelli for workmen's compensation against his employer, the Colorado Fuel and Iron Corporation. After a hearing, the commission found and determined that claimant's condition had worsened since the entry of a prior award, and that he was presently permanently and totally disabled. The supplemental award, based upon such finding and determination, was attacked in the district court where, after hearing, it was affirmed. The judgment of affirmance is the subject of assault here by writ of error.

Tamburelli was adjudged by the commission to be permanently and totally disabled by its order entered on January 31, 1961. From the evidence it appears, and the commission found, that he was 58 years of age, unlettered, having had no schooling whatever, and that he had been a coal miner by occupation for more than 32 years. He had sustained three injuries to his back while working for the employer, all of which necessitated surgery.

Awards of compensation were made in proceedings held following these injuries. A determination that Tamburelli had suffered a permanent and partial disability of 30% as a working unit formed the basis of the award entered after the hearing held in regard to the second injury. This injury occurred in May, 1952, and upon resumption of employment, Tamburelli was assigned to do light work. In July, 1957, he was returned to heavy work, and on November 24, 1958, while performing his assignment, he injured his back for the third time.

As the result of a hearing on a claim concerning this third injury, an order was entered in which it was said:

'The parties at this hearing stipulated that the claimant has sustained permanent but partial disability to the extent of 50% as a working unit, 30% of which is attributable to his previously-determined accident, and 20% of which is attributable to the accident which is the subject of this Order.'

A supplemental award in accordance with such ascertained disability was entered on June 21, 1960.

Both claimant and employer were advised by the doctors that claimant should not engage in any heavy toil; that his labors thereafter must be limited to light work. Tamburelli's efforts to secure releases from the doctors to permit him to work were of no avail; they would allow him to perform only light work. The employer had no such work available, and eventually its mining enterprise ceased operating.

In order to establish total and permanent disability, Tamburelli showed the environmental factors of his life, already adverted to; his injuries and the disability flowing therefrom; and his late efforts to obtain work from his employer. A doctor testified that he had examined Tamburelli shortly before the hearing and concluded that 'he was quite disabled, had previously give him 50% as a working unit, but I felt that he was unable to work as a coal miner.'

The referee had made an award on June 21, 1960, based in great part on the stipulation of the parties. Believing that an error had been committed in the award, the employer petitioned for a review. The petition lay undertermined, and the claim was in this posture when the commission, on its own motion, directed that the order of June 21, 1960, be reopened.

Whether the action of the commission, in directing that the order be reopened, was regular in the premises can make no difference in the outcome of this case. Regularity of action could be of importance in workmen's compensation claims, but it is doubted that a question of regularity exists here, as it is proposed now to show.

The order of the referee 'shall be the final award of the commission, unless a petition for review is filed as provided in this chapter.' C.R.S. '53, 81-14-4. 'Any party in interest who is dissatisfied with the order entered by the referee may petition to review the same and the referee may reopen said case, or may amend or modify said order, and such amended or modified order shall be a final award unless objection be made thereto by further petition for review. * * *' (Emphasis supplied.) C.R.S. '53, 81-14-6.

Since the matter was still pending before the commission on the employer's petition to review the June, 1960, award, the referee still had statutory authority to modify or amend the award; it was not a final award.

'Upon its own motion on the ground of error, mistake or a change in condition, the commission * * * may review any award and on such review, may make an award ending, diminishing, maintaining, or increasing compensation previously awarded subject to the maximum and minimum provided in this chapter * * *. No such review shall affect such award as regards any moneys already paid.' (Emphasis supplied.) C.R.S. '53, 81-14-19. If the statutory conditions are present, it would appear that the commission can reopen any award, whether interim or final, and adjust compensation in accordance with the standards of the act.

The stipulation is evidence only of the then existing condition of Tamburelli. Kansas Explorations v. Wright, 173 Okl. 411, 49 P.2d 65; Ferraro v. Zurcher, 12 N.J.Super. 23, 79 A.2d 473. It did not pretend to prognosticate change or no change of condition. Indeed, prediction in this respect, under the guise of a stipulation, might raise a serious question of authority in the commission to use it to form the basis for commission action.

Recognizing variance in statutory language, it has been said that in 'most jurisdictions, if a compensation agreement or settlement has been entered between the parties and thereafter there is a change in the condition of the employee, on proper application or petition, the agreement or settlement may be reviewed, and compensation may be increased or diminished, or the payment of compensation may be suspended or terminated.' 101 C.J.S. Workmen's Compensation § 896, p. 308. States having statutes very like ours have so decided. Lincoln Coal Co. v. Watts, 275 Ky. 130, 120 S.W.2d 1026; Prassas v. J. F. McElwain Co., 100 N.H. 209, 123 A.2d 157.

In compensation cases, an aggrieved party 'may have questions of law only reviewed * * * by the supreme court.' C.R.S. '53, 81-14-17. When the sufficiency of the evidence to sustain an award is questioned, we are limited by the statute to 'the legal question of whether there is evidence to support the findings, and not whether the Commission has misconstrued its probative effect. The award is conclusive upon all matters of fact properly in dispute before the Commission, where supported by evidence, or reasonable inference to be drawn therefrom.' Passini v. Industrial Commission, 64 Colo. 349, 171 P. 369.

It is a postulate of the commission's authority that it has an ample discretion in the resolution factually of the extent or degree of disability an injured workman may have sustained, and that its commensurate exercise in respect thereof removes the case from intervention by the courts. Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087; National Fuel Co. v. Arnold, 121 Colo. 220, 214 P.2d 784; Industrial Commission v. Colorado Fuel & Iron, 135 Colo. 307, 310 P.2d 717. In the last case referred to, the court quoted the doctrine which prevails in this state in this wise:

"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. * * * Also the presumption exists that in making an award * * * the commission considered and gave...