Deterts v. Times Pub. Co., 75--903

• Decision Date: 10 June 1976
• Docket Number: No. 75--903,75--903
• Citation: 38 Colo.App. 48,552 P.2d 1033
• Parties: Larry DETERTS, Petitioner, v. TIMES PUBLISHING COMPANY et al., Respondents. . I
• Court: Colorado Court of Appeals

Page 1033

552 P.2d 1033

38 Colo.App. 48

Larry DETERTS, Petitioner, v. TIMES PUBLISHING COMPANY et al., Respondents.

No. 75--903.

Colorado Court of Appeals, Div. I.

June 10, 1976.

Rehearing Denied June 24, 1976.

Certiorari Denied Aug. 3, 1976.

George Reddin, Fort Morgan, for petitioner.

Zarlengo, Mott & Zarlengo, Albert E. Zarlengo, Jr., Denver, for respondents Times Pub. Co. and Commercial Union Ins. Co.

J. D. MacFarlane, Atty. Gen., Louis L. Kelley, Asst. Atty. Gen., Denver, for respondent Industrial Commission of the State of Colorado.

COYTE, Judge.

Claimant, Larry Deterts, appeals from a final order and award of the Industrial Commission which affirmed the order of a referee denying workmen's compensation benefits to claimant on the ground that the injury complained of neither 'arose out of' nor occurred 'in the course of' claimant's employment. We reverse.

At the hearing before the referee only claimant and his doctor testified; consequently, in our review of the record we must consider those facts established therein as undisputed. Claimant testified that he had commenced his employment as a newspaper carrier for the Fort Morgan Times (Times Publishing Company), respondent-appellee herein, in August of 1972, at a weekly salary rate of $8. He stated that he was required to deliver his assigned newspapers before 6 P.M.; that deliveries were made right after school and until 'I got them all delivered,' taking approximately 2 to 3 hours; that while there was no company rule in effect precluding delivery of newspapers on foot, all the newspaper carriers rode their bicycles to deliver papers since otherwise it would take too long to make deliveries.

Claimant reported that about two weeks into the fall term of 1972, acts of vandalism occurred on the school grounds. Such acts included the theft of bicycles and deflating of bicycle tires. As a result of the vandalism, some of the delivery boys approached Mr. Spencer, owner of Times Publishing, and suggested that they be allowed to place their bicycles on the Times' premises during school hours, so that '(they) would be there when we got ready to go on our routes.' With Mr. Spencer's approval, claimant and other of the news boys rode their bikes from home in the morning to the Times' building, took them to the basement by means of the freight elevator, and left them there. After school they would return and pick them up. On February 13, 1973, claimant, accompanied by two friends took his bicycle to the basement of the Times' office building and was returning on the freight elevator when he caught his foot between the elevator and the floor and suffered injury when the elevator came up on his foot.

Claimant's doctor testified that claimant has suffered a crushing injury to the foot which caused a traumatic amputation of the third and fourth toes at the proximal phalangeal joint and which required hospitalization for twelve days.

Following the hearing, the referee issued his findings of fact and order:

'From the evidence adduced at the hearing and a complete examination of the file, the referee finds that the Claimant has failed to establish that he sustained an accident arising out of and in the course of his employment on February 13, 1973, Or that the condition complained of resulted from accidental injury. Therefore it is ordered: that this claim for compensation of medical benefits be and the same is hereby denied and dismissed.' (emphasis supplied)

In a supplemental order, the referee affirmed his original findings and further found that 'the only reason the claimant was keeping the bicycle in the basement of the Times (Building) and the only reason the claimant was on the employer's premises on this particular morning was for the sole benefit of the claimant so he would not have to take his bicycle to the school grounds where vandalism was occurring.' The findings of fact and award of the referee were adopted thereafter as the final award of the Commission. Claimant appeals therefrom.

The findings of fact and order of the Commission raise two issues for consideration on appeal: (1) whether claimant failed to establish that the condition complained of resulted from accidental injury; and (2) whether claimant's injury suffered on February 13, 1973, 'arose out of' and 'in the course of ' employment.

The uncontroverted evidence presented at the hearing before the referee established that claimant suffered an accidental injury. Hence, initially we hold that the finding by the referee that claimant failed to establish 'that the condition complained of resulted from accidental injury' is unsupported by Any evidence and is manifestly erroneous as a matter of law. See Breckenridge Co. v. Swales Management Corp., 185 Colo. 160, 522 P.2d 737.

As to the second issue, I.e., whether claimant's injury 'arose out of' and 'in the course of' his employment, since the facts of this case are undisputed, the Commission's legal conclusions drawn from those facts are not binding on this court. The correctness of a legal conclusion drawn from undisputed facts is properly a matter for the appellate court. Dorsch v. Industrial Commission, Colo., 523 P.2d 458; Walsh v. Industrial Commission, 34 Colo.App. 371, 527 P.2d 1180.

Under the wording of our Workmen's Compensation Statute, then in effect, an employee was entitled to workmen's compensation benefits if he was injured in an accident 'arising out of' and 'in the course of' his employment. Packaging Corp. of American v. Industrial Commission, 173 Colo. 212, 477 P.2d 367; Accord City Products Corp. v. Industrial Commission, 23 Ariz.App. 362, 533 P.2d 573.

It should be noted that in 1975, § 8--52--104, C.R.S. 1973, was amended deleting the requirement that a compensable injury be 'accidentally sustained.'

The expression 'arising out of' refers to the Origin or Cause of the injury, while the words 'in the course of' refer to the Time, place and Circumstances under which the injury...