Employers' Mut. Ins. Co. v. Industrial Commission of Colorado

• Citation: 65 Colo. 283,176 P. 314
• Decision Date: 03 June 1918
• Docket Number: 9377.
• Parties: EMPLOYERS' MUT. INS. CO. et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.
• Court: Colorado Supreme Court

176 P. 314

65 Colo. 283

EMPLOYERS' MUT. INS. CO. et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.

No. 9377.

Supreme Court of Colorado, En Banc

June 3, 1918

Rehearing Denied Dec. 2, 1918.

Error to District Court, City and County of Denver; John A. Perry Judge.

Proceedings by Thomas Pier, under the Workmen's Compensation Act, to obtain compensation for personal injuries, opposed by the Leyden Coal Company, the employer, and the Employers' Mutual Insurance Company, insurer. There was an award, which was affirmed by the district court, and the insurance company and employer bring error. Affirmed.

L. Ward Bannister, Leroy McWhinney, and Samuel M. January, all of Denver, for plaintiffs in error.

Leslie E. Hubbard, Atty. Gen., and Charles Roach and John L Schweigert, Asst. Attys. Gen. (Walter E. Schwed, of Denver of counsel), for defendants in error.

BAILEY, J.

In this case it is sought to have set aside a finding and award of the State Industrial Commission. In January, 1916, Thomas Pier, hereinafter called the claimant, was injured by the fall of a rock in a mine of the Leyden Coal Company, where he was employed. By agreement, approved by the Commission, he was allowed $8.00 per week from February 20th, 1916.

In August, 1916, upon hearing the Commission found that as a result of the injury he had lost twenty per cent. of the hearing of both ears, forty-five per cent. of the use of the left eye, and had suffered a permanent facial disfigurement. Taking as a basis the specific indemnity schedule of the Compensation Law (Laws 1915, p. 515), and the average wages of the claimant, together with the partial disabilities as above set out, the Commission found that claimant should receive $8.00 per week for approximately sixty-one weeks, or until April 20th, 1917, aggregating $468.40; that deducting the amount already paid, claimant was entitled to $340.82 including $50.00 as indemnity for permanent facial disfigurement, and the order provided that he might apply for further compensation after April 20th, 1917, should his disability extend beyond that date. By specific order the Commission retained jurisdiction of the case.

Presently before the 20th of April, 1917, claimant filed a petition for further compensation, and a hearing was had, following which, on June 6th, 1917, a finding was entered to the effect that the claimant was permanently partially disabled to the extent of twenty-five per cent.; that his expectancy of life was 21.12 years; that had his disability been total the value of such expectancy, computed at $8.00 per week, would be $8,785.92, twenty-five per cent. of which would be $2,196.45; that the maximum indemnity allowed under the compensation law is $2,080.00, and claimant was allowed further compensation at the rate of $8.00 per week, or $34.72 per calendar month, until he should receive $2,080.00, less the amount already paid him. The order further provided that the insurer might at any time apply to the Commission for such relief as might be proper should changes occur in the physical condition of claimant.

The Leyden Coal Company and the Employers' Mutual Insurance Company applied for a rehearing, which was denied. They then filed their complaint in the district court against the Commission and the claimant. That court affirmed the findings and award and the companies bring the case here for review.

In substance the errors alleged are that the method of calculating the amount of compensation is wrong, the amount awarded excessive, and the payments thereof unlawfully augmented; that the finding of a disability of twenty-five per cent. is erroneous, as including improper elements that the findings do not support the award; and that there is no evidence to support findings of disabilities other than those existing prior to the award of August, 1916, which it is insisted have already been finally and fully compensated.

The method used to calculate the amount of compensation appears to have not only been a proper one, but the only practicable one. It was plainly necessary to discover to what extent claimant was disabled, as that is the basis upon which he was to be compensated, and without which determination he could receive no compensation. The extent of the disability having been ascertained, and the condition determined to be permanent, it was permissible for the Commission to ascertain and consider the life expectancy of claimant as an aid to fixing the aggregate amount due him under the statute. Inasmuch as the statute provides a maximum amount which a claimant may receive for permanent partial disability, his life expectancy is at least a proper element for consideration to assist in determining whether he is entitled to the full maximum...