Industrial Commission of Colorado v. W. A. Hover & Co.

• Decision Date: 19 September 1927
• Docket Number: 11801.
• Citation: 82 Colo. 335,259 P. 509
• Parties: INDUSTRIAL COMMISSION OF COLORADO et al. v. W. A. HOVER & CO. et al.
• Court: Colorado Supreme Court

259 P. 509

82 Colo. 335

INDUSTRIAL COMMISSION OF COLORADO et al. v. W. A. HOVER & CO. et al.

No. 11801.

Supreme Court of Colorado, En Banc.

September 19, 1927

Error to District Court, City and County of Denver; Henley A Calvert, Judge.

Proceeding under the Workmen's Compensation Act by Joseph A. Huber claimant, against W. A. Hover & Co., employer, and another insurance carrier. To review a judgment setting aside the findings of the Industrial Commission of Colorado and its award of compensation, the commission and claimant bring error.

Affirmed.

William L. Boatright, Atty. Gen., and Jean S. Breitenstein and Otto Friedrichs, Asst. Attys. Gen., for plaintiffs in error.

Fred W. Varney, of Denver, for defendants in error.

CAMPBELL J.

This is a writ of error to review a judgment of the Denver district court which set aside findings of the Industrial Commission, and its award of compensation based thereon, for a hernia alleged to have been sustained by the employee, Huber, in the course of his employment by Hover & Co., wholesale druggists. In the course of the proceedings before the commission there were several findings, original and supplemental, all of which that bear on the injury were made on the testimony of claimant and may thus be summarized: That in the course of his employment the claimant, on November 12, 1924, suffered a hernia whose appearance was preceded by accidental strain and accompanied by pain; that claimant reported the hernia to the employer on November 13, one day later, and the employer did not report the accident until June 26, 1926. Unless such findings as to the injury itself are made by the commission, no award in any event can be made to an employee, under section 4454, C. L. 1921, reading:

'An employee in order to be entitled to compensation for hernia must clearly prove, first, that its appearance was accompanied by pain; second, that it was immediately preceded by some accidental strain suffered in the course of the employment.'

In the Workmen's Compensation Act of 1915, § 52 (Laws 1915, p. 544), there were two other conditions or requirements as to the proof, but they were omitted when the section was amended by our General Assembly in 1919 (S. L. 1919, p. 732, § 80), leaving the section as above quoted.

These are the respective contentions of the parties. The Industrial Commission and the claimant, plaintiffs in error, say that, supported by such findings of fact by the commission, the award cannot be interfered with by the courts. The defendants in error, the employer and insurance carrier, contend that the undisputed testimony of the claimant, and his testimony constitutes the only evidence before the commission, not merely is insufficient to prove hernia, but clearly and explicitly shows that the hernia was not proved as our statute requires. That no award could legally be made in this proceeding, because section 84 of the Workmen's Compensation Act, as amended (S. L. 1923, p. 745, § 15), declares that the right to compensation and benefits under the act shall be barred unless within 6 months after the injury, not resulting in death, a notice claiming compensation shall be filed by or in behalf of the claimant with the commission, and since in this case the claimant did not file any such notice for a period of about 20 months after his alleged injury, the statute operates as a bar to any relief. These in their order.

In our earlier decisions under the Workmen's Compensation Act (C. L. §§ 4375- 4525) there are expressions in the opinions from which it might be inferred that all findings of fact by the Industrial Commission are conclusive upon the courts and are not subject to review by the latter. Later decisions, however, are that where there is no evidence at all to support an award, or where the evidence is so weak that it amounts to no evidence, it is the duty of the courts to set aside findings and awards of the commission based thereon. The first definite announcement of this doctrine, though there are earlier like intimations, is in Industrial Commission v. Elkas, 73 Colo. 475, 216 P. 521, followed in Employers' Mut. Ins. Co. v. Industrial Commission, 74 Colo. 201, 219 P. 1078, and other cases.

We have carefully read the statement of the claimant which he filed with the commission and his testimony and are compelled to say that proof of the alleged hernia as required by the foregoing statute is wholly lacking, not merely weak. Plaintiff's own statement and testimony expressly negative the finding of the commission that the hernia was preceded by accidental strain and accompanied by pain. In claimant's written statement filed with the commission and in the testimony which he gave before the referee, as certified by the commission, he says that on November 12 1924, he went from one of the lower floors of the building in which he was working to the fourth floor, to get a case of bottles. He asked the man in charge of the bottle department for them, and as they were on a high shelf the man asked claimant to help get them down, which he did. The box or case weighed about 150 pounds. As a rule, when the claimant needed bottles the man from the bottle department brought them down to him, but this day claimant went up after them. An hour...