Gadbois v. Allan

Decision Date11 September 1939
Docket Number14586.
Citation94 P.2d 688,105 Colo. 19
PartiesGADBOIS v. ALLAN et al.
CourtColorado Supreme Court

Rehearing Denied Oct. 2, 1939.

In Department.

Error to District Court, City and County of Denver; Henry A. Hicks Judge.

Proceeding under the Workmen's Compensation Act by Albert Gadbois employee, opposed by David Allan, as the Crown Mine Company employer, and the Employers' Mutual Insurance Company insurer. To review a judgment of the District Court, sustaining a demurrer to complaint seeking to have an award of the Industrial Commission of Colorado, set aside, the employee brings error.

Affirmed.

O. A. Johnson, of Boulder, for plaintiff in error.

Hawkins & Hawkins, of Denver, for defendants in error David Allan and Employers' Mut. Ins. Co.

Byron G. Rogers, Atty. Gen., and Frank A. Bruno, Asst. Atty. Gen., for defendant in error Industrial Commission.

BAKKE Justice.

Pursuant to our instructions given when this case was previously before us (Allan v. Gadbois, 100 Colo. 141, 66 P.2d 331) the matter was again referred to the Industrial Commission, which, after extended hearings, entered its final award March 30, 1938, the same being the culmination of the twelfth hearing on the claim. In making this last award the commission held, inter alia, that another hearing would accomplish nothing; that 'these cases must end sometime,' and ordered: 'That the award of this commission dated August 14, 1936, be, and the same is hereby, set aside, vacated and annulled, and that the original order of the Referee dated the first day of June, 1933, and subsequently reviewed and affirmed by the commission upon several occasions, be, and the same is hereby reinstated, and affirmed as the final award of this commission.'

After the granting of a fifteen-day extension of time to file a petition for review of this last award, such a petition was filed April 27, 1938. The petition was denied in a supplemental award entered May 4, 1938, in which the commission held that its award 'dated March 30, 1938 be, and the same hereby is affirmed and approved as the final award of this commission.'

May 19, 1938, another petition for review was filed based on a written communication from a physician (sixteen other doctors whose qualifications were never challenged having on several occasions testified in the previous hearings) which contained the statement, after reciting his diagnosis, 'I estimate the patient's permanent disability to be forty (40) per cent.' May 24, the commission issued another supplemental award ordering 'That the award of this commission dated May 4, 1938, be and the same hereby is affirmed and approved as the final award of this commission.' This, as will be noted, simply reaffirmed the former award of March 30th.

June 13, 1938, claimant filed his complaint in the district court to which a demurrer was interposed on the grounds, first that it failed to state a cause of action; and, second, that it 'shows upon its face that this action was not commenced within twenty days after the final finding, order or award entered by the defendant Industrial Commission of...

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3 cases
  • Industrial Com'n v. Plains Utility Co.
    • United States
    • Colorado Supreme Court
    • May 25, 1953
    ...v. Industrial Commission, 96 Colo. 522, 44 P.2d 1011; Industrial Commission v. Martinez, 102 Colo. 31, 77 P.2d 646; Gadbois v. Allan, 105 Colo. 19, 94 P.2d 688; Brown v. Colorado Fuel & Iron Corporation, 111 Colo. 253, 140 P.2d We hold that the filing of the petition for rehearing as provid......
  • Industrial Commission v. Cutshall
    • United States
    • Colorado Supreme Court
    • November 20, 1967
    ...unless reopened by the Commission on its own motion. Industrial Comm. v. Plains Utility Co., 127 Colo. 506, 259 P.2d 282; Gadbois v. Allan, 105 Colo. 19, 94 P.2d 688. Having failed to pursue the statutory procedure for review of claimed error in law, Cutshall now seeks to invoke C.R.S. 1963......
  • Shrewsbury v. Reynolds-Morse Corp.
    • United States
    • Colorado Supreme Court
    • September 18, 1939

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