Simpson & Co. v. Wheeler, 20650

• Decision Date: 18 November 1963
• Docket Number: No. 20650,20650
• Citation: 386 P.2d 976,153 Colo. 480
• Parties: SIMPSON AND COMPANY and Casualty Reciprocal Exchange, Plaintiffs in Error, v. John B. WHEELER and the Industrial Commission of Colorado, Defendants in Error.
• Court: Colorado Supreme Court

Page 976

386 P.2d 976

153 Colo. 480

SIMPSON AND COMPANY and Casualty Reciprocal Exchange, Plaintiffs in Error, v. John B. WHEELER and the Industrial Commission of Colorado,

Defendants in Error.

No. 20650.

Supreme Court of Colorado, En Banc.

Nov. 18, 1963.

Rehearing Denied Dec. 9, 1963.

Coit & Walberg, Denver, for plaintiffs in error.

Richard W. Hanes, Colorado Springs, for defendant in error John B. Wheeler.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for defendant in error Industrial Commission.

McWILLIAMS, Justice.

By writ of error Simpson and Company, the employer, and Casualty Reciprocal Exchange, the employer's compensation insurance carrier, seek reversal of the judgment of the trial court affirming and sustaining an award of the Industrial Commission of Colorado based on its finding that John B. Wheeler, the claimant, suffered a thirty percent permanent partial disability as the result of an accident occurring on December 30, 1960 wherein Wheeler slipped and fell while in the process of unloading a boxcar for his employer. The only issue is whether there is sufficient evidence to support this finding of a thirty percent permanent partial disability and the monetary award based thereon.

In holding that Wheeler sustained a thirty percent permanent partial disability the Commission found 'that claimant has a five percent permanent [partial] disability as a working unit from a physical standpoint only, and that in addition thereto, because of claimant's inability to perform manual labor, his age, education, mental training, and former employment, claimant has an additional disability of twenty-five percent as a working unit, making in all a total permanent partial disability of thirty percent.'

The employer and its carrier concede that there is evidence to support the finding that Wheeler suffered a five percent permanent partial disability, but contend that there is no evidence to support the finding of an additional permanent partial disability of twenty-five percent. Contrarily, Wheeler contends that the record discloses ample evidence to support the finding of the Commission that Wheeler had a thirty percent permanent partial disability as a result of the accident.

C.R.S. '53, 81-12-9(1) provides, inter alia:

'* * * [i]n determining permanent partial disability, the commission shall ascertain in terms of percentage the extent of general permanent disability which the accident has caused, taking into consideration not only the manifest weight of the evidence, but the general physical condition and mental training, ability, former employment and education of the injured employee. * * *'

Pursuant to the provisions of this section it is agreed that the Commission in determining permanent partial disability is not limited or restricted solely to a consideration of the physical injury, per se, but is empowered to also consider, inter alia, the mental training and education, or the lack of it, and former employment of the injured employee.

In the instant case was there evidence before the Commission which would justify and support its determination that Wheeler suffered a thirty percent permanent partial disability, twenty-five percent of which was attributable to his 'inability to perform manual labor, his age, education, mental training and former employment'? Before checking the record in this regard it is believed helpful to briefly examine prior pronouncements of this Court concerning C.R.S. '53, 81-12-9(1).

In Byouk v. Industrial Commission, et al., 106 Colo. 430, 105 P.2d 1087, where the Commission determined that claimant suffered a sixty percent permanent partial disability, this Court said:

'* * * [t]he functional disability of an injured workman, compared with that of a normal man, does not control in fixing his compensable status, since the term 'disability' as used in the Workmen's Compensation Act, means industrial disability or loss of earning capacity and not mere functional disability.' (Emphasis supplied)

In London Guarantee & Accident Company, et al. v. Coffeen, et al., 96 Colo. 375, 42 P.2d 998, where the Commission also determined that the injured employee suffered a sixty percent permanent partial disability, the Court observed that '[t]he percentage of 'general permanent disability' is not the same for all individuals who may suffer the same injury.'

Finally, in Globe Indemnity Company, et al. v. Industrial Commission, et al., 67 Colo. 526, 186 P. 522, where a coal miner was determined to have suffered a seventy percent permanent partial disability, it was stated as follows:

'Age, education, training, general physical and mental capacity, and adaptability, may, and ofter should, be taken into consideration in arriving at a just...