Industrial Commission of Colorado v. Johnson

• Decision Date: 04 March 1918
• Docket Number: 9275.
• Citation: 172 P. 422,64 Colo. 461
• Parties: INDUSTRIAL COMMISSION OF COLORADO et al. v. JOHNSON.
• Court: Colorado Supreme Court

172 P. 422

64 Colo. 461

INDUSTRIAL COMMISSION OF COLORADO et al. v. JOHNSON.

No. 9275.

Supreme Court of Colorado

March 4, 1918

Rehearing Denied May 6, 1918.

In Banc. Error to District Court, City and County of Denver John I. Mullins, Judge.

Proceedings by Oscar L. Johnson to obtain workman's compensation opposed by the Spratlen-Anderson Mercantile Company employer, and the Standard Accident Insurance Company insurer. There was an award for applicant, which was modified on rehearing, and applicant brought suit in the district court to set aside the award as modified and to reinstate the original award. To review judgment as prayed, the Industrial Commission, the employer, and the insurer bring error. Affirmed.

Leslie E. Hubbard, Atty. Gen., and John L. Schweigert, Asst. Atty. Gen., for plaintiff in error Industrial Commission.

Geo. P. Winters and Fillius, Fillius & Winters, all of Denver, for other plaintiffs in error.

Henry E. May, of Denver, for defendant in error.

TELLER J.

The defendant in error filed with the Industrial Commission a claim for compensation under chapter 179, Laws of 1915, for injury to one of his eyes while in the employ of plaintiff in error the Spratlen-Anderson Mercantile Company. On a hearing on the complaint, the commission found that Johnson had become totally blind in one eye by reason of said injury, and awarded him $7 per week for 104 weeks. Later, a rehearing was granted; the commission found that Johnson still had useful vision, and reduced the period during which compensation was to be paid to 9 5/11 weeks. It found also that claimant, having received $147, was owing the respondents the sum of $80.80. Thereupon the claimant filed suit in the district court of the city and county of Denver to set aside and modify the award on the second hearing, and to reinstate and confirm the award made on the first hearing. The court determined that the claimant's disability amounted to total blindness, and made an award on that basis. The case is now here for review under said statute.

It is contended by the plaintiffs in error that the court's judgment is based upon new findings of fact, which, by the statute, it has no power to make. The several errors assigned are all based upon the proposition that, if the findings of the commission are supported by credible and substantial evidence, they must be accepted by the court; and that the court rejected findings which were thus supported.

That the rule of law is as counsel claim is not to be doubted, but that the trial court violated it is not established.

The commission found that:

The claimant, prior to the injury, 'had suffered a reduced vision to that eye of 6/66 or 1/11 of normal vision; * * * that such diminution of vision, due to the accident, is not more than 1/11 of a total loss of vision in said eye, and that claimant still has useful vision in said left eye since the accident; * * * that he is entitled to such proportionate amount of compensation at $7 for 104 weeks, as the diminution of vision that he actually suffered, in this eye by reason of the accident, bears to total blindness, which the commission finds, as aforesaid, to be 1/11.'

The award on that basis, for 9 5/11 weeks, is then made, as above stated. Counsel for plaintiffs in error treat this finding as being that Johnson lost 1/11 of what vision he had when injured, which would be 1/121 of normal vision. That however, is not supported by anything in the record. Nowhere in the evidence is 1/11 of anything mentioned except as a fraction of normal...