National Lumber & Creosoting Co. v. Kelly
| Decision Date | 27 December 1937 |
| Docket Number | 14239. |
| Citation | 75 P.2d 144,101 Colo. 535 |
| Parties | NATIONAL LUMBER & CREOSOTING CO. et al. v. KELLY et al. |
| Court | Colorado Supreme Court |
Rehearing Denied Jan. 17, 1938.
In Department.
Error to District Court, City and County of Denver; Stanley H Johnson, Judge.
Proceedings under the Workmen's Compensation Act by Joseph A. Kelly claimant, opposed by the National Lumber & Creosoting Company, employer, and the Ocean Accident & Guarantee Corporation, Limited, insurer. To review an order of the Industrial Commission, the employer and insurer bring error.
Affirmed.
Edward L. Wood, Pierpont Fuller, Jr., and Norman W. Baker, all of Denver for plaintiff in error.
Samuel D. Menin, of Denver, for defendant in error Joseph A. Kelly.
Byron G. Rogers, Atty. Gen., and Louis Schiff, Asst. Atty. Gen for defendant in error Industrial Commission.
This is a workmen's compensation case, which was before us on a previous occasion. The former opinion is reported in 99 Colo 442, 63 P.2d 457, 459, and the concluding paragraph reads as follows: 'The judgment is reversed, and the cause remanded to the district court, with directions that it send the case back to the commission instructing it to reopen the case and receive such competent testimony as may be offered upon which it shall make such award, if any, as it may feel the evidence warrants, and to be so specified in the finding and award.' In compliance with the above instructions, the case was reopened, competent testimony was received, findings were made, and compensation for total disability awarded. The findings and award were approved by the district court, and it is to review that judgment that the case is again before us.
The former record recites that the claimant was injured in a runaway accident, resulting in a severe fracture of the skull which subsequently necessitated the removal of a part of it, leaving an opening therein one-half inch wide and three-fourths of an inch long. The commission found that the physical and mental reactions attendant upon the skull fracture totally disabled the claimant, and fixed the award accordingly.
Plaintiffs in error acknowledge that in the final award of the commission of June 25, 1937, findings were made upon the issues before it, but they are now contending that the findings are not supported by the evidence.
Eleven assignments of error are made, only four of which we deem it necessary to consider in disposing of this matter: (1) That the commission abused its discretion in not compelling the claimant at this time to submit to a further test for syphilis by an analysis of his spinal fluid, as requested and demanded by plaintiffs in error, and their physician; (2) that the commission erred in not finding that part of the claimant's disability was due to his failure to submit to prompt operative treatment following his injury; (3) that the findings of the commission do not support the award, in that 'fear and anxiety' do not constitute a lawful or proper basis for an award of compensation; (4) that the commission did not make any specific findings, or give specific reasons for its change of mind in increasing claimant's disability from 25 per cent. to total disability.
1. We are of the opinion that the commission did not abuse its discretion in refusing to compel the claimant to submit to further spinal tests to determine the presence of neurosyphilis, in accordance with section 360, chapter 97, volume 3, '35 C.S.A., section 4455, C.L.1921, which reads in part as follows: 'If any employee shall persist in any unsanitary or injurious practice which tends to imperil or retard his recovery or shall refuse to submit to such medical or surgical treatment as is reasonably essential to promote his recovery, the commission may, in its discretion, reduce or suspend the compensation of any such injured employee.' (Italics are mine.) It will be noted that this statute specifically gives the commission discretion in matters of this kind, and those seeking to attack the result must show that it abused its discretion.
It may be true that claimant had syphilis prior to his injury in October, 1928, but since that time he has had treatment for that disease at the Mayo Clinic. Part of the medical testimony on this issue was as follows: ...
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