Globe Indemnity Co. v. Industrial Commission of Colorado

• Decision Date: 05 January 1920
• Docket Number: 9709.
• Citation: 67 Colo. 526,186 P. 522
• Parties: GLOBE INDEMNITY CO. et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.
• Court: Colorado Supreme Court

186 P. 522

67 Colo. 526

GLOBE INDEMNITY CO. et al. v. INDUSTRIAL COMMISSION OF COLORADO et al.

No. 9709.

Supreme Court of Colorado, En Banc.

January 5, 1920

Error to District Court, City and County of Denver; Francis E Bouck, Judge.

Proceedings under the Workmen's Compensation Act by Matt Kamby, the employé, opposed by the Colorado Mining & Development Company, a corporation, the employer, and the Globe Indemnity Company, a corporation, the insurer. Compensation was awarded by the Industrial Commission, the award affirmed by the district court, and to review its judgment the employer and insurer bring error.

Judgment affirmed.

The findings of the Industrial Commission, supported by sufficient evidence, will not be disturbed by the supreme court.

D. L Webb, of Denver, for plaintiffs in error.

Victor E. Keyes, Atty. Gen., and John S. Fine, Asst. Atty. Gen. (H E. Curran, of Silverton, of counsel) for defendants in error.

Matt Kamby, defendant in error (hereinafter designated as 'claimant'), was employed by plaintiff in error the Colorado Mining & Development Company in its mining operations, and plaintiff in error the Globe Indemnity Company was the insurer of the mining company. All were subject to the provisions of the Workmen's Compensation Act (chapter 179, Laws of 1915, p. 515). Claimant was injured on the 14th day of October, 1916, by a falling timber which broke his left leg about two inches above the knee. The sole question for the determination of the commission was the extent and degree of claimant's disability. On this subject there was received in evidence, by agreement, the written report of Dr. Buchtel, whose conclusion is that 'temporary disability should be for ten months. Permanent disability five per cent.' Also the written report of Dr Stuver, whose conclusion is:

'Considering this man's occupation I believe that his permanent partial disability is not less than from fifteen to twenty per cent.'

Also the written report of Dr. Hegner, which states:

'In my opinion this man's disability is such that he cannot resume his work as a miner, I would make a conservative estimate of seventy per cent. total permanent disability for the present with every prospect of this increasing.'

In addition there was the oral testimony of Dr. Hegner, who stated that his estimate of 70 per cent. disability was intended to mean disability as a miner, and it was confined solely to the injured leg and not intended to apply to the entire body as affected by the injury in question.

'The man's usefulness outside of this depends upon not only his physical condition but his mentality. * * * It depends upon his mentality, and his will and his occupation. * * * If he had the mentality he could earn more than he did as a miner--but I would not put it at 15 or 20 per cent.

'Q. Probably not as much as that? A. Certainly, that is plenty.'

It further appeared that claimant was born in Austria; was a naturalized citizen of the United States had been in this country 28 years, during practically all of which time he had been engaged in mining. The commission found 'that the claimant had sustained 70 per cent. loss of the use of the left leg,' and made its award accordingly. From a judgment of the district court affirming such award, plaintiffs in error prosecute this writ.

BURKE, J. (after stating the facts as above).

Plaintiffs in error contend that the commission and the court misconstrued the meaning of the phrase 'impairment of earning capacity,' erroneously limiting it to the particular occupation in which claimant was employed when injured; that whereas the evidence shows that claimant may have sustained a 70 per cent. 'impairment of earning capacity' as a miner, it conclusively appears that his general 'impairment of earning capacity' did not exceed 20 per cent.; hence the finding and award of the commission are unsupported by any evidence.

It appears that the rule contended for by plaintiffs in error for determining the 'impairment of earning capacity of claimants,' and which we will designate as 'Rule No 1,' is, 'The degree of disability is to be determined by the claimant's general impairment of earning capacity without respect to any particular kind of labor,' to support...