Morrison v. Clayton Coal Co.

• Decision Date: 02 June 1947
• Docket Number: 15864.
• Citation: 181 P.2d 1011,116 Colo. 501
• Parties: MORRISON et al. v. CLAYTON COAL CO. et al.
• Court: Colorado Supreme Court

181 P.2d 1011

116 Colo. 501

MORRISON et al. v. CLAYTON COAL CO. et al.

No. 15864.

Supreme Court of Colorado, in Department.

June 2, 1947

Error to District Court, City and County of Denver; Joseph J Walsh, Judge.

Proceeding under the Workmen's Compensation Act on the claim of Ernest Morrison opposed by Clayton Coal Company, employer and the Employers' Mutual Insurance Company, insurance carrier.To review a determination of the District Court reversing a supplemental order of the Industrial Commission of Colorado in favor of claimant and directing commission to delete certain provisions from award, claimant and commission bring error.

Judgment reversed in part and award of commission as to temporary total disability approved.

H. Lawrence Hinkley, Atty. Gen., Duke W. DunbarDeputy Atty. Gen., and Barbara Lee, Asst. Atty. Gen., for plaintiffs in error.

Forrest C. Northcutt, of Denver, for defendants in error.

STONE Justice.

Claimant Morrison, an employee of respondent coal company, was injured in the course of his employment January 4, 1940.Upon a hearing Before the Industrial Commission it entered an award whereunder respondents were ordered to 'pay compensation to claimant at the rate of $14.00 per week from January 20, 1940 to December 5, 1940 * * * on account of temporary total disability; thereafter, at the same rate until the further sum of $3640 (the maximum allowance) shall have been paid for and on account of permanent partial disability.'On April 18, 1944, pursuant to petition of respondents, the case was reopened for further hearing, and thereafter it was again reopened on the commission's own motion with the result that, after several intermediate orders had been made and vacated, the commission found that claimant had been temporarily and totally disabled until he reached his maximum degree of improvement on March 20, 1942 and that he suffered permanent partial disability to the extent of ten per cent as a working unit.Pursuant to this finding the commission ordered in substance that respondents pay compensation to claimant from January 20, 1940 to March 19, 1942, for and on account of temporary total disability and thereafter at the same rate until the amount provided by statute as compensation for ten per cent permanent partial be paid.In an appropriate proceeding this award was reviewed by the district court, which held: (1) That the finding of the commission that claimant's temporary disability terminated on March 20, 1942, instead of December 6, 1940, as it had been determined by its previous award, was not supported by the evidence; and (2) that the order requiring respondents to pay compensation on account of temporary total disability to March 20, 1942, was retroactive and in contravention of the prohibition of section 389, chapter 97, '35 C.S.A., as amended bysection 1, chapter 135, S.L. '43.Accordingly the court reversed the supplemental order of the commission in so far as it required payment of compensation for temporary total disability subsequent to December 5, 1940, and directed the commission to delete such requirement from its award.

It is elementary that the findings of the Industrial Commission as to facts must be accepted by the courts if there is any substantial evidence to support them.The evidence discloses that claimant at the time of the accident was working as a coal miner and sustained an injury to his lower back and hips in a mine accident as a result of which he was subjected to extended hospitalization and operative treatment.The surgeon who performed the operation, and whose estimate of disability was the basis of the findings of the commission in February, 1941, testified that claimant could not return to his employment as a miner and had a total loss for hard manual labor.He reported that on December 6, 1940, claimant complained of constant pain and believed he would never be able to work in the mine again.At a subsequent hearing claimant testified that he suffered great pain in attempting to do any physical work, that he was unable to do physical work prior to March 20, 1942, and that because of his disability from the injury he was, during that period, attending business school in order to obtain a means of earning a living other than by physical labor.He further testified as to attempts to work during that period at a filling station and in a department store, and of his inability to remain in either employment because of pain in connection with the limited stooping and lifting there involved.We believe the evidence was sufficient to support the finding of the commission.Amended Section 389, supra, authorizes the commission, within the period there provided, to review any award on the ground of error, mistake or change of condition, and upon a sufficient showing to make an award ending, diminishing, maintaining, or increasing compensation previously awarded.This section of the statute plainly authorizes the action of the commission here involved, unless its right is limited by a subsequent provision of the section which provides: 'No such review shall affect such award as regards any moneys already paid.'The question for our determination is whether the supplemental award of the commission extending the date of temporary total disability from December 5, 1940 to March 20, 1942, was in violation of that provision of the statute as being retroactive or as affecting the previous award 'as regards any moneys already paid.'

It seems important to note the distinction between such an award and a judgment.The latter is based on past acts; the former in its determination as to whether liability exists, also is based upon past acts, but in its determination as to the extent of injury and amount of compensation, is based upon estimates as to future results.Accordingly, the finding by a commission as to liability is res judicata (South v. Indemnity Ins. Co.,39 Ga.App. 47, 146 S.E. 45), but its determination as to the extent and duration of disability and the amount of compensation properly to be awarded therefor should be subject to...