National Fuel Co. v. Arnold

Decision Date23 January 1950
Docket NumberNo. 16382,16382
Citation214 P.2d 784,121 Colo. 220
PartiesNATIONAL FUEL CO. et al. v. ARNOLD et al.
CourtColorado Supreme Court

Forrest C. Northcutt, Denver, for plaintiffs in error.

Wood & Ris, Denver, for defendant in error Arnold.

John W. Metzger, Atty. Gen., Allen Moore, Deputy Atty. Gen., Donald C. McKinlay, Asst. Atty. Gen., for defendant in error Industrial Commission.

HILLIARD, Chief Justice.

An Industrial Commission inquiry. It appears that November 22, 1938, claimant Arnold, while employed as a miner by plaintiff in error National Fuel Company in its coal mines, and in the course of his employment, sustained an accidental injury; that December 14, 1938, both plaintiffs in error, proceeding in writing, admitted liability to 'claimant for compensation disability caused by accidental injury at $14.00 per week, beginning Dec. 3rd, 1938, and continuing during disability. Also for such permanent disability as may hereafter be determined to exist;' that June 24, 1940, claimant continuing to be permanently and totally disabled, plaintiffs in error petitioned for an order requiring him to submit to medical examination and surgery, failing which, that, 'his right to weekly indemnity or compensation which shall accrue and become payable during the period of such refusal shall be barred.'

September 11, 1940, there was a hearing on that petition, the parties appeared by counsel, and testimony was taken. September 17, 1940, a referee of the commission found that the proposed examination and surgery promised to improve claimant's condition and ordered him to submit thereto. October 3, 1940, the commission affirmed and adopted the order of its referee. Pursuant to such order, claimant submitted to examination and surgery, and the physician who conducted the examination and performed the surgery reported at length thereon, concluding by saying: 'Claimant is totally disabled for any kind of manual work though there are undoubtedly sedentary occupations in which he might be gainfully employed if he can be so trained.' Subsequently, plaintiffs in error, predicating their action on such report, advised the commission that payment of compensation will not be suspended in the interim, and requested that the matter be 'set for hearing to determine by formal award the date of termination of the claimant's temporary total disability and the degree of his permanent disability.'

In conformity with the foregoing request, a referee of the commission, proceeding November 19, 1941, conducted a hearing in full form, receiving evidence and hearing counsel, at the conclusion of which the referee announced that a written order would follow. November 24, 1941, the referee found and ordered as follows: 'Upon hearing it appeared that claimant sustained an accident arising out of and in the course of his employment on November 22, 1938, and that as a result of his accident, he received injuries to his back and pelvis, which caused him to be totally disabled from the date of his accident. It further appears that he will be permanently and totally disabled for the duration of his lifetime. His average weekly wage was $34.50. He was born December 5, 1913 * * * Therefore it is ordered: That respondents pay compensation to the claimant at the rate of $14.00 per week * * * for the rest of claimant's natural life.' No review was sought, hence the order became final.

Although no point is made thereon, it is informative to state that at intervals, claimant sought partial lump sum settlements, some of which were granted, and others were refused or withdrawn. In working out the mathematics resulting from such allowances, it appears that the existing order is that the compensation be dischargeable at the rate of $59.52 per month instead of $14 per week, as previously.

February 20, 1948, claimant, setting forth his desire to take a 'Secretarial Course' in a Denver business college, sought an order for an allowance of $405, reciting that 'due to the increased cost of living, it is necessary that he secure work which he is physically able to do, to supplement his monthly payments of compensation ordered by the commission.' March 31, 1948 (some formal postponements intervening), plaintiffs in error, instead of answering claimant's petition, filed a petition to 'reopen the claim,' alleging that 'claimant's physical condition has changed, in that he has improved,' and prayed that the commission reopen the cause of its own motion. Proceeding thereon April 8, 1948, the commission ordered a further hearing to be held May 3, 1948, before a referee, 'to determine whether there had been change in the claimant's condition.' September 29, 1948, the referee found that, 'since the order of the commission dated November 24, 1941, there had been no change of condition of the claimant resulting from the accident,' but added that 'error' obtained in the original order of the commission, in that instead of being permanently and totally disabled, claimant suffered only 75 per cent permanent disability as a working unit, and ordered that he be paid 'no further compensation.' Although at first the commission approved its referee's finding and order, it finally vacated and set aside its order to that effect, and affirmed and adopted its original order of November 24, 1941, ordering, 'that payments of compensation be resumed in accordance therewith.' March 5, 1949, plaintiffs in error sought review in the Denver district court, and November 4, 1949, the court ruled adversely to them and approved and affirmed the findings and award of the commission.

At this point we pause to set forth the details of claimant's injuries, on the basis of which the commission found and determined and refound and redetermined, as already stated, that claimant was permanently and totally disabled, and would continue to be and remain in that condition for the 'duration of this lifetime.' In the terminology of the testifying representative of the medical profession, claimant 'had a fracture of his twelfth thoracie vertebra with injury to the end of the...

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9 cases
  • Rodriguez v. Michael A. Scatuorchio, Inc.
    • United States
    • New Jersey Superior Court — Appellate Division
    • October 30, 1956
    ...that a reasonably stable market for them does not exist, may well be classified as totally disabled.' Cf. National Fuel Co. v. Arnold, 121 Colo. 220, 214 P.2d 784 (Sup.Ct.1950); Texas Indemnity Insurance Co. v. Bonner, 228 S.W.2d 348 (Tex.Civ.App.1950); Dietz v. State, 157 Neb. 324, 59 N.W.......
  • Lightner v. Cohn
    • United States
    • New Jersey Superior Court — Appellate Division
    • October 18, 1962
    ...that a reasonably stable market for them does not exist, may well be classified as totally disabled.' Cf. National Fuel Co. v. Arnold, 121 Colo. 220, 214 P.2d 784 (Sup.Ct.1950); Texas Indemnity Insurance Co. v. Bonner, 228 S.W.2d 348 (Tex.Civ.App.1950); Dietz v. State, 157 Neb. 324, 59 N.W.......
  • Lozano v. Archer
    • United States
    • New Mexico Supreme Court
    • December 4, 1962
    ...quantity that a reasonably stable market for them does not exist, may well be classified as totally disabled.' See National Fuel Co. v. Arnold, 121 Colo. 220, 214 P.2d 784, and Texas Indemnity Insurance Co. v. Bonner, Tex.Civ.App., 228 S.W.2d We think this rule applies in all respects to th......
  • Casa Bonita Restaurant v. Industrial Commission of Colorado
    • United States
    • Colorado Court of Appeals
    • February 19, 1981
    ...discretion effectively, must be permitted to consider in their entirety "the facts of each case." See, e. g., National Fuel Co. v. Arnold, 121 Colo. 220, 214 P.2d 784 (1950); Colorado Fuel & Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153 Therefore, the Commission had the ri......
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