Roper v. Industrial Com'n, 13249.
| Decision Date | 05 September 1933 |
| Docket Number | 13249. |
| Citation | 25 P.2d 725,93 Colo. 250 |
| Parties | ROPER v. INDUSTRIAL COMMISSION et al. |
| Court | Colorado Supreme Court |
Rehearing Denied Oct. 9, 1933.
In Department.
Error to District Court, Pueblo County; John H. Voorhees, Judge.
Proceeding by C. M. Roper for a writ of mandamus to be directed to the Industrial Commission and others. Judgment was entered denying the writ, and petitioner brings error.
Affirmed.
S.D. Brosius, of Pueblo, for plaintiff in error.
Fred W Varney, of Denver, for defendants in error John M. MacIndoe and Ocean Accident & Guarantee Corporation, Limited.
Paul P Prosser, Atty. Gen., and Morris S. Ginsberg, Asst. Atty Gen., for defendant in error Industrial Commission.
This is a mandamus proceeding brought in the district court of Pueblo county against the insurer of an employer under the Workmen's Compensation Act of Colorado (C. L. §§ 4375-4525, as amended). The petitioner sought to compel payment of an amount which he alleged to be due under a certain 'rule of procedure' adopted by the Industrial Commission in 1928, but now superseded. The court declined to issue the writ, and the petitioner asks for a reversal.
The controversy has been Before us at a previous stage. Industrial Commission v. Roper, 91 Colo. 125, 12 P.2d 349. That was a proceeding for review under the procedure prescribed by the act itself. The opinion there shows that the petitioner Roper had received a compensable injury; that the insurer admitted liability and agreed to pay compensation during disability; that at the request of the insurer certain hearings were had to determine the extent of the disability, which the commission undertook to do, fixing June 30, 1930, as the termination of temporary disability and denying permanent disability; that the district court vacated the order and award of the commission, and ordered the case remanded to the commission for further hearing. This court approved the remand on the ground that there was not sufficient evidence to sustain the finding as to the date when temporary disability ended, but disapproved the lower court's order that compensation be paid until July 7, 1930, which purported to be based upon one of the commission's 'rules of procedure.' The rule was not pleaded and did not appear in the record then Before us, and we therefore held that the district court ought not to have considered it. The judgment was modified accordingly, and so affirmed. It is evident that the case was sent back to the commission for further hearing. Whether further proceedings were had in accordance with the judgment of this court does not clearly appear.
We now have Before us the mandamus petition denied by the district court as stated at the beginning. It sets forth the rule above referred to, and alleges the violation of this rule by the insurer. It also alleges Roper's filing of a motion Before the commission to require the insurer's paying forthwith, in alleged compliance with the rule, an amount of compensation figured by Roper up to May 25, 1931 (he expressly waiving or relinquishing his right to further compensation after said date), 'less, however, such sum or sums as insurer can show by receipts or otherwise, that it has paid said...
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...administrative system intended to be all-encompassing. For authority, it relies on the decision of this court in Roper v. Industrial Commission, 93 Colo. 250, 25 P.2d 725 (1933), and a series of decisions from California beginning with Noe v. Travelers Insurance Co., 172 Cal.App.2d 731, 342......
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