Industrial Com'n v. Newton Lumber & Mfg. Co.

• Decision Date: 05 August 1957
• Docket Number: No. 18273,18273
• Citation: 135 Colo. 594,314 P.2d 297
• Parties: The INDUSTRIAL COMMISSION of Colorado and Joseph H. McColm, Plaintiffs in Error, v. NEWTON LUMBER & MANUFACTURING COMPANY and the Ocean Accident and Guarantee Corporation, Ltd., Defendants in Error.
• Court: Colorado Supreme Court

Page 297

314 P.2d 297

135 Colo. 594

The INDUSTRIAL COMMISSION of Colorado and Joseph H. McColm Plaintiffs in Error, v. NEWTON LUMBER & MANUFACTURING COMPANY and the Ocean Accident and Guarantee Corporation, Ltd., Defendants in Error.

No. 18273.

Supreme Court of Colorado, En Banc.

Aug. 5, 1957.

Rehearing Denied Aug. 26, 1957.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., and Peter L. Dye, Asst. Atty. Gen., for plaintiffs in error.

Duane O. Littell, Denver, for defendants in error.

KNAUSS, Justice.

Plaintiffs in error seek reversal of a judgment of the Denver District Court vacating an award of the Industrial Commission in a proceeding arising under the Workmen's Compensation Act of Colorado, C.R.S. '53, 81-1-1 et seq.

We will refer to the Industrial Commission as the 'Commission'; to Joseph H. McColm as 'Claimant'; defendant in error Newton Lumber Company as 'Employer', and the insurance carrier, Ocean Accident and Guarantee Company, Ltd. as 'Insurer'.

Claimant, a carpenter, was employed by employer in its cabinet shop as a millman. On July 16, 1954 he sustained an accidental injury caused by twisting his back while lifting a table top and moving it from one side of a planer to the other. This accidental injury was reported by employer to be a 'ruptured disk in back bone'. Claimant reported the accident to employer's foreman on Friday, the day it was sustained. The following Sunday claimant's wife called this foreman, a Mr. Kennett, and advised him that claimant would not be to work on Monday. Claimant went to a hospital and Mr. Kennett Knew he was there and visited him while he was hospitalized. The employer's report of the accident stated that it occurred on July 16, 1954.

Claimant was hospitalized from August 7 to August 15 during which time he was under traction. He returned to the hospital on August 23, 1954 to undergo corective surgery on his spine and was released September 7, 1954. A week later he reported for work but was not reemployed by employer, and during the first week of October obtained work elsewhere.

Claim for compensation was filed by claimant on May 6, 1955, following employer's report of the accident to the Industrial Commission on November 3, 1954. The Insurance Carrier filed its denial of liability on November 16, 1954. A notice from the Industrial Commission to claimant advising him of the denial of liability did not reach claimant because of an incorrect address given the Commission by the employer.

A hearing on the claim was held May 23, 1955. On September 22, 1955 the referee of the Commission entered Findings of Fact and ordered compensation paid to claimant for temporary disability from July 17, 1954 to September 12, 1954, plus medical expenses. This award was approved by the Commission on October 31, 1955.

The employer and insurer petitioned for a review and on November 15, 1955 the Commission entered a supplemental award in which it affirmed and approved the award of October 31, 1955 whereupon the employer and insurer sought review in the Denver district court alleging that claimant did not file his claim for compensation within six months after the accidental injury, and that there was a lack of evidence to support the findings of the Commission as to a 'disc' injury, as well as to medical expense and as to the time claimant was prevented from working due to the accident. Issue was joined and upon hearing the district court remanded the case to the Commission for additional findings with respect to the application of the six months statute of limitations. Thereupon the following supplemental findings were made by the Commission:

'Pursuant to Order of the District Court of August 24, 1956 wherein the Court ordered the Industrial Commission 'to forthwith make a finding of fact as to upon what fact is based the opinion that the Statute of limitations for filing of claims before the Industrial Commission does not apply in this case,'

'The Commission in its Supplemental Order of June 18, 1956 found that claimant had a reasonable excuse for failure to file his claim within six months of the date of injury. Our reasons for this conclusion are that claimant reported his injury to his foreman on the day of its occurrence as shown by claimant's testimony and respondents' first report of accident. However, the employer did not report the incident to this Commission until November 3, 1954 and respondent insurance carrier did not file its notice of contest until November 18, 1954. Therefore, this Commission did not notify claimant of the necessity of filing a claim for compensation benefits until November 23, 1954. Within six months of that notification, claimant filed his claim for benefits.

'The Commission also finds that 'the employer's rights have not been prejudiced' by this delay, for the reason that this claimant promptly placed himself under the care of a physician whose identity was known to the employer, who was at liberty at any time to have selected another physician to treat the claimant if it had chosen and it was not shown that the medical services rendered were in any way inadequate. On the contrary, this claimant was temporarily and totally disabled a comparatively short period of time and resumed work without residual disability.

'Therefore, reiterate that it has been established to the satisfaction of the Commission * * * that a reasonable excuse exists' for claimant's failure to file claim within six months.

'In Witness Whereof, the Industrial Commission of Colorado has caused these presents to be duly executed this 24th day of September, A.D. 1956.'

Thereafter the trial court vacated the award of the Commission and Claimant seeks review by this writ of error.

Two questions are presented for our determination: (1) Did the Commission properly excuse claimant's failure to file his claim within six months following his injury pursuant to C.R.S. '53, 81-13-5, and (2) Does the evidence support the finding of fact made by the Commission.

These questions must be answered in the affirmative. C.R.S. '53, 81-13-5 governs the Commission in considering claims filed more than six months from date of injury. The pertinent portion of this statute is as follows:

'* * * The right to compensation and benefits, as provided by this chapter, 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. This limitation shall not apply to any claimant to whom compensation has been paid, or where it is established to the satisfaction of the commission within two years after the injury or death that a reasonable excuse exists for the failure to file such notice claiming compensation, and the employer's rights have not been prejudiced thereby, and the furnishing of medical, surgical or hospital treatment by the employer shall not be considered payment of compensation or benefits within the meaning of this section.' (Emphasis supplied.)

This statute...