Industrial Commission v. Seastone

Decision Date13 January 1969
Docket NumberNo. 23330,23330
Citation448 P.2d 963,167 Colo. 571
PartiesINDUSTRIAL COMMISSION of Colorado, State Compensation Insurance Fund, and J. L. Williams, Plaintiffs in Error, v. George A. SEASTONE, Defendant in Error.
CourtColorado Supreme Court

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for plaintiff in error Industrial Commission of Colorado.

Harold Clark Thompson, Alious Rockett, Francis L. Bury, Feay B. Smith, Jr., Denver, for plaintiffs in error J. L. Williams and State Compensation Ins. Fund.

Myrick, Criswell & Branney, John A. Criswell, Englewood, for defendant in error.

DAY, Justice.

The defendant in error, George A. Seastone, is the claimant in a workmen's compensation case. He was a carpenter by trade. While operating an electric saw he severely cut his left hand thereby causing him to lose one finger and so damaged the tendons that he has no use of the ring and long finger and only limited use of the index finger and thumb. Liability was admitted by the employer and the State Compensation Insurance Fund, hereinafter referred as to the Fund.

The controversy which has resulted in more than five years of litigation arises out of the means used by the Commission in fixing the amount of the plaintiff's compensation and the action of the trial court in remanding the matter to the Commission on three different occasions.

The award was originally made on a special admission of liability filed by the Fund and based on the report of one of claimant's attending surgeons. That report stated:

'Patients disability is Limited to his left hand at the wrist level. He has loss of the 5th finger with deep scar across palm to thumb. He has loss of flexor tendon to the ring and long fingers and flexion of these fingers only by lumbricales and interossei. The index finger is in a position of function and has a range of 20 at the Metacarpal phalangeal joint. He has slight flexion motion in the thumb with some apposition to the index finger. Sensation is impaired in all fingers especially the thumb. Apposition of the thumb to the index finger is the only motion remaining in the hand. 90% Disability at the wrist.' (Emphasis added.)

Claimant's counsel, in a letter to the Commission agreed that 'claimant's functional disability from a medical standpoint is 90% Loss of the left hand at the wrist.' The claimant protested the award on that basis and asked the Commission to find that claimant was disabled as a working unit because of his age, education and experience. The Commission thereupon set the case for hearing, and after the taking of medical testimony which the Commission characterized as conflicting--and we agree that it was--entered an order determining the compensation on the basis of 90% Loss of the left upper extremity measured at the wrist. In addition, it ruled that claimant's claim for an award on a working unit basis be denied.

After the claimant had lodged his appeal in the district court, the Commission attempted three times thereafter to enter orders which would comply with the specific mandates of the trial court. Finally, on the third occasion, it entered a supplemental order which in pertinent part reads as follows:

'It is obvious from a review of the testimony in this case that the evidence is in conflict with respect to the degree of the claimant's disability resulting from his accident of November 19, 1963, and that in view of the evidence in the record this case could be rated in the discretion of the Commission under the provisions of 81--12--4, subparagraph 1(a), and subparagraph (7) under the specific schedule set forth in said subparagraph 1(a), or in the alternative, pursuant to the authority contained in subparagraph (7) of 81--12--4, the disability could be rated as a working unit under the provisions of Section 81--12--9.

'The Commission, therefore, having again considered the medical testimony; the claimant's testimony, and the testimony of other witnesses, finds as a fact that claimant's disability is 90 per cent loss of the hand at the wrist; that his disability in fact is less than if he had had his hand amputated at the wrist; that his physical disability is limited to the results of the injury which he sustained to his left hand.

'The Commission therefore is of the opinion, and so finds, that this case should be rated under the specific schedule set forth in 81--12--4, subparagraphs (1)(a), as further modified by (7) thereof, and the Commission so further finds and determines, and therefore, in the exercise of the discretion vested in it by Subsection (7), 81--12--4 CRS, 1963, declines to rate the claimant as a working unit under the provisions of Section 81--12--9 CRS 1963, and it is accordingly so ordered.'

The trial court thereupon entered judgment reversing the Commission and specifically ordered, among other things, that as a matter of law:

'* * * this claimant is entitled to a working unit disability by the Commission, and the Commission, under the evidence presented, does not have the authority or discretion to '* * * decline to rate the claimant as a working unit * * *', and the Commission is, therefore, ordered to rate the claimant as a working unit disability (sic), taking into consideration, in addition to the physical impairment of the claimant, his...

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