Frank v. Industrial Com'n of Colo.

• Decision Date: 18 March 1935
• Docket Number: 13573.
• Citation: 96 Colo. 364,43 P.2d 158
• Parties: FRANK v. INDUSTRIAL COMMISSION OF COLORADO et al.
• Court: Colorado Supreme Court

43 P.2d 158

96 Colo. 364

FRANK v. INDUSTRIAL COMMISSION OF COLORADO et al.

No. 13573.

Supreme Court of Colorado, En Banc.

March 18, 1935

Error to District Court, Boulder County; Neil F. Graham, Judge.

Proceeding under the Workmen's Compensation Act by August Frank employee, opposed by the Black Diamond Fuel Company employer. Order of the Industrial Commission refusing to award compensation was affirmed by the district court, and employee brings error.

Reversed and remanded, with directions.

CAMPBELL BURKE, and HOLLAND, JJ., dissenting.

C. G. Garbarino and O. A. Johnson, both of Boulder, for plaintiff in error.

Paul P Prosser, Atty. Gen., M. S. Ginsberg, Asst. Atty. Gen., and Frank C. West, of Denver, for defendants in error.

Dines, Dines & Holme, Lee, Shaw & McCreery, Yeaman, Gove & Huffman, William E. Hutton, McComb & Green, Fred W. Varney, and Gordon W. King, all of Denver, amici curiae.

BOUCK Justice.

The case at bar was first considered in a department of three justices. An opinion was handed down, reversing the judgment of the lower court. While a petition for rehearing was pending, a number of attorneys asked and obtained leave to file, and did file, briefs as amici curiae. They requested that the petition for rehearing be considered and decided by the court en banc. This has been done. A rehearing having been granted, the previous opinion was withdrawn; and, the case having since been orally argued by counsel and duly considered by the court en banc, the present opinion--also reading for reversal--is hereby substituted, with such amplification as seems called for by the arguments advanced in the briefs.

The plaintiff in error, August Frank, claims under the Workmen's Compensation Act (C. L. § 4375 et seq., as amended) as an injured employee of the Black Diamond Fuel Company. The Industrial Commission refused to award compensation. The claimant duly instituted his action in the district court to compel a contrary decision. That court, however, affirmed the commission's order, and this is the judgment we are asked to reverse.

The claim here asserted is for compensation on account of a ruptured appendix, with subsequently resulting peritonitis. The injury occurred while the claimant was lifting a mine car in the company's coal mine. He consulted the company's physician, who examined him, had him removed to a hospital, and saw that an appropriate operation was performed.

Though the accident happened on October 11, 1932, it was August 4, 1933, when the claimant filed a formal notice of his claim with the commission. Nearly four months had then elapsed since the expiration of the six-month period fixed by section 84 of the act (C. L. § 4458), as amended by Laws 1923, p. 745, § 15, hereinafter quoted. (The commission's record Before us seems to indicate that a prior notice had been filed the last part of June or first part of July, about one month earlier, but for our present purpose this point is immaterial.)

On August 9, 1933, the commission received from the company's insurer a 'notice of contest,' dated the 8th, denying liability on the following alleged grounds: (1) That the injury does not come within the provision of section 15 of the Workmen's Compensation Act (C. L. § 4389); (2) that, if any compensation be due, it should be reduced 50 per cent. under section 83 of the act (C. L. § 4457); (3) that the average weekly wages were not to exceed $10; (4) that notice was not given in time as provided by section 31 of the act (C. L. § 4405), nor filed in time as provided by section 84 thereof; and (5) that disability terminated within the ten-day waiting period.

Of the above five grounds, (1) and (4) are the only ones which under the evidence in the record call for consideration; and under (4) only section 84 need be discussed, since the evidence shows that a verbal notice was given to the superintendent of the company immediately after the accident.

On August 11, 1933, the commission received a letter from the insurer, inclosing a letter--received by it from the company and dated two days earlier--which stated that the claimant was not injured while in the company's employ, that he 'had an attack of appendicitis and was taken by Dr. Snair [one of the company physicians] to the Community Hospital and from there to the County Hospital where he was operated upon,' and that he 'remained at the County Hospital for some time.' By way of unimportant correction, it may be said that the claimant was not operated upon at the County Hospital, but, according to the uncontradicted evidence, at the Community Hospital, whither he was taken by the company physician as already stated.

On December 28, 1933, the commission received from the company a letter dated the day Before, stating that the claimant 'was not hurt in the * * * mine,' but 'became ill at home and not due to any cause of his labor. * * * Some time after Mr. Frank was taken to the hospital, news came to us that he had been operated on for some intestinal trouble and also his appendix was removed, therefore we did not feel or believe it was a case of injury.'

The denying attitude thus expressed by the company and its insurer was uniformly preserved. From the very beginning of the controversy, the company contended that the injury was not sustained in the course of the claimant's employment and did not arise out of it; but it introduced no evidence to support this contention. The claimant emphatically stated the contrary, and his uncontradicted evidence in substantiation of the statement is Before us.

The referee of the commission duly held a hearing, pursuant to notice, on December 20, 1933. Both sides appeared by counsel. The claimant was the only witness called by either side. He told a consistent story to the effect that his injury arose out of, and in the course of, his employment while he was at work inside the company's mine when he received a strain followed by the rupture of his appendix. He also testified that he gave notice of the injury to the employer company forthwith. The medical, surgical, and hospital treatment necessitated by his condition are amply attested. A part of this treatment is shown to have been given by the company physician; the remainder is shown to have been given under authority from him. The company brought in no witnesses; neither the superintendent to whom the claimant gave prompt verbal notice of the injury, nor any of the employees mentioned by the claimant as present when the injury occurred, nor either of the two company doctors who had examined and passed the claimant when he went to work for the company only two weeks Before, and who were both present when the operation was performed after the injury.

Under the evidence Before it, and in the total absence of testimonial refutation or impeachment, the commission could properly make no other finding than that the injury was compensable.

In spite of the fact that the claimant's testimony stood thus uncontradicted and unimpeached, the commission's referee on January 12, 1934, rejected the claim. His order contains the following findings: 'Claimant was employed as a miner, by the above named respondent employer. On October 11th, 1932, while pushing a loaded coal car, claimant alleges to have sustained injuries which forced him to leave his employment on October 13th, 1932. Claimant's disability resulted from the rupturing of his appendix and possible other internal injuries. * * * On or about October 12th, the claimant called the company doctor and received attention, operative treatment and hospitalization. The respondent employer has steadfastly maintained that claimant's condition was not the result of accidental injury. Claimant did not file his claim for compensation until August 4th, 1933, or nearly ten months after the commencement of his disability. The Referee finds from the evidence that claimant's claim for compensation is barred by Section 84 of the Workmen's Compensation Act * * *.' That section, of course, relates, by its express terms, only to claims for compensable injuries.

The company, for the manifest purpose of avoiding any liability resulting on account of the compensable injury established as aforesaid, invoked the bar of the following statute: '* * * The right to compensation and benefits, as provided by this Act, shall be barred unless within six months after the injury, or within one year after death resulting therefrom, a notice claiming compensation shall be filed with the Commission. * * *' C. L. 1921, § 4458 (as amended by Sess.Laws 1923, p. 745, § 15), being the above-mentioned section 84 of the Workmen's Compensation Act.

There is no doubt that the six-month period prescribed for filing notice with the commission had elapsed without such filing.

To obviate this purported defense, and avoid the apparent bar the claimant relies upon the sentence immediately following the passage just above quoted, nemely: 'This limitation shall not apply to any claimant to whom compensation has been paid.' Ibid. He contends that the furnishing of the services rendered by, or under the direction of, the company's physician constituted--in view of the power and authority granted the physician by the...