Contes v. Metros, 15510.

• Decision Date: 20 November 1944
• Docket Number: 15510.
• Citation: 153 P.2d 1000,113 Colo. 1
• Parties: CONTES et al. v. METROS et al.
• Court: Colorado Supreme Court

153 P.2d 1000

113 Colo. 1

CONTES et al. v. METROS et al.

No. 15510.

Supreme Court of Colorado, En Banc.

November 20, 1944

Rehearing Denied Dec. 11, 1944.

Error to District Court, City and County of Denver; Charles C Sackmann, Judge.

Proceeding under the Workmen's Compensation Act by Chris D. Metros claimant, opposed by Lambros Contes and others, partners doing business as the Denver Coney Island, employers. To review a judgment of the district court affirming the action of the Industrial Commission of Colorado in refusing to reopen and review a final award, the employers bring error.

Judgment affirmed.

E. V. Holland, of Denver, for plaintiffs in error.

Gail L. Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., and Barbara Lee, Asst. Atty. Gen., for defendant in error Industrial Commission.

Clarence W. Button, of Denver, for defendant in error Chris D. Metros.

KNOUS Justice.

This review is directed to a judgment of the district court affirming the action of the Industrial Commission in refusing to reopen and review a final award in a workmen's compensation case upon the petition of plaintiffs in error. Other phases of the case have been considered by this court on two prior occasions. In its first appearance, the Industrial Commission had denied the claim of defendant in error Metros, hereinafter to be called the claimant, for compensation for disability allegedly arising from a hernia said to have been incurred in an industrial accident while employed by plaintiffs in error, whom we shall designate herein as the 'employers'. Upon review, in Metros v. Denver Coney Island, 110 Colo. 40, 129 P.2d 911, the case was remanded and ordered transmitted to the commission for specific findings of fact as required by the pertinent statute. Following such remand, the commission, after re-examining its record of the original hearing, and taking supplemental testimony, entered an award of compensation to the claimant, which was upheld by the district court. In the review instituted by the employers which followed, we affirmed the judgment. Contes v. Metros, 111 Colo. 561, 144 P.2d 782.

During the pendency in the courts of the latter proceeding, the employers filed with the commission the petition herein in concern, to reopen the case and set aside the award upon the ground that its allowance was procured by fraud. In support they alleged that the claimant had testified Before the commission, in effect, that he never had been 'bothered' by a hernia previous to the alleged accident in 1940; that he had never told anyone he had had such 'trouble' prior thereto. As evidence of the falsity of these statements, they filed two affidavits of persons said to be disinterested, who averred as a matter of fact, that claimant had a hernia in 1927 and had sought medical advice with respect thereto at that time. No counter showing by affidavit or otherwise was made by claimant. In due course, the commission, having reviewed the entire file and particularly the petition to reopen, found and finally decided that there was no sufficient showing of error, mistake or change of condition, to warrant reopening or reconsidering the case. As stated above, the district court affirmed the decision of the commission in an action instituted by the employers, and the latter are here seeking a reversal of such adjudication upon the specification that in view of the uncontroverted showing of fraud said to have been made by the petition and affidavits, the commission abused its discretion in not conducting a hearing upon the petition to reopen. The legislative conference of authority on the commission to reopen a case in which an award finally has been made is found in amended section 389, chapter 97, 1943 Cum.Supp. to '35 C.S.A. (chap. 135 S.L. 1943). See, Clayton Coal Co. v. Zak, 94 Colo. 171, 29 P.2d 374. The power thus given to the commission to review an award is discretionary and the commission's action cannot be set aside by the courts except in the case of fraud or abuse of discretion. Industrial Commission v. Lockard, 89 Colo. 428, 3 P.2d 416; Id., 90 Colo. 333, 9 P.2d 286; Lockard v. Industrial Comm., 91 Colo. 212, 13 P.2d 1117; Mantor v. Industrial Commission, 89 Colo. 90, 299 P. 11, and Pollard v. Industrial Commission, 95 Colo. 572, 37 P.2d 1093. See, also, State Compensation Insurance Fund v. Industrial Commission, 80 Colo. 130, 249 P. 653, cited in notes in 49 A.L.R. 456, and 72 A.L.R. 116. The circumstance, as appears from the record that the charge of fraud here is directed to the initial award and not to the action of the commission in denying the motion to reopen, limits the judicial inquiry on review to the question of the alleged abuse of discretion of the commission in so proceeding originally. It seems evident from the language of section 389, supra, that in considering the propriety of reviewing an...