Wierman v. Tunnell

• Decision Date: 01 December 1941
• Docket Number: 14979.
• Parties: WIERMAN et al. v. TUNNELL et al.
• Court: Colorado Supreme Court

120 P.2d 638

108 Colo. 544

WIERMAN et al. v. TUNNELL et al.

No. 14979.

Supreme Court of Colorado

December 1, 1941

Rehearing Denied Jan. 5, 1942.

In Department.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Proceeding for compensation under the Workmen's Compensation Act by Roy J. Tunnell, employee, opposed by H. L. Wierman and another, co-partners doing business as the Summit Grain Company, employers, and the Lumbermen's Mutual Casualty Company, insurance carrier. To review a judgment affirming an award of compensation by the Industrial Commission, the employers and insurance carrier bring error.

Judgment affirmed in part, and cause remanded, with directions as to amount to be awarded.

Lowell White and William K. Ris, both of Denver for plaintiffs in error.

Gail L Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., and Morry M. Sterling, Asst. Atty. Gen., for defendant in error Industrial Commission of Colorado.

Lansford F. Butler, of Denver, for defendant in error Roy J. Tunnell.

OTTO BOCK, Justice.

Roy J Tunnell, defendant in error, presented a claim for compensation under the Workmen's Compensation Act, for personal injuries resulting from an accident arising out of and in the course of his employment June 10, 1938. Upon the date mentioned he was struck by some sacks of grain which fell from a handtruck used in his employer's warehouse. Thereafter he was in a hospital for about 18 days, where 'head traction' was immediately applied, followed by the installation of a cast. X-ray plates disclosed 'a small spicule of bone fractured off the anterior superior surface of the body of the seventh cervical vertebra.' After approximately ninety days he returned to work for the same employer. Early in July, 1940, the employer's warehouse was destroyed by fire, and, this part of its business being discontinued, claimant was discharged. A few days later he obtained employment at the Eagle Flour Mills in Denver. In November, 1938, he filed a claim for compensation with the Industrial Commission, describing his disability as a 'stiff neck and sleepiness in one foot and both hands.' At the subsequent hearing the evidence disclosed no permanent disability, but did show that he, as a working unit, had an industrial disability of five per cent, and that this disability would not continue beyond six or twelve months. The commission's award, December 5, 1938, upon which no petition for review was filed, allowed claimant's medical and hospital bills and compensation for total temporary disability up to the day of his return to work, plus temporary partial disability for one week thereafter. October 7, 1940, upon petition of claimant, the commission ordered the case reopened for the purpose of determining whether or not there was a changed condition in claimant's disability. After a full hearing, in which five medical experts testified as to his condition, the commission, November 30, 1940, found that, 'Evidence taken Before the referee on November 16, 1938, indicated that claimant sustained no permanent partial disability. However, claimant's condition failed to improve, but on the contrary became worse and the Commission now finds that claimant has suffered a permanent partial disability equivalent to 5% as a working unit directly attributable to this accident.' Upon this finding the commission awarded claimant $773.50 for permanent partial disability, to be paid at the rate of $12.50 per week. The trial court affirmed the award.

While counsel for plaintiffs in error set out 24 specification of points, only five grounds for reversal are urged in their brief. These are as follows:

'1. That there is no change in the condition of claimant from the time of the hearing in November 1938 to the time of the hearing in November 1940, and that

'2. The Commission has set aside a final judgment or award without sufficient grounds or reasons according to law, and

'3. That it is clear that the claimant was not in November 1940 disabled in any wise as a result of the accident of June 10, 1938, and that

'4. The claimant has not sustained his burden of proving that the alleged injuries and disabilities now claimed were proximately caused by the accident and injury of June 1938, and that

'5. The amount awarded is excessive by reason of the mistake of age made by the Commission.'

Counsel for plaintiffs in error vigorously contend that there is no competent evidence showing a change in claimant's physical condition between November, 1938, and November, 1940, such as to satisfy the requirements of section 389, chapter 97, '35 C.S.A., and therefore, in granting the award here under consideration, the commission exceeded its powers. A careful perusal of the entire record leads us to a different conclusion. A portion of claimant's testimony given at a hearing November 18, 1940, is as follows: 'Q. Since the last hearing Before this Commission, in November, 1938, what has been your physical condition? A. Well, both my hands are just kind of numb, and both fingers, right through there on both fingers, the back of my hand, clean up to my elbows, just feels like somebody is sticking me with needles and pins, in both hands. My right eye was jerked back, and every once in a while it just takes a spasm. Maybe tomorrow it will do it for a day or two, and then maybe it won't do it for a while. And there is a sore spot right there in the back of my neck, see, which keeps me from swinging my head either way, you see. I just get about so far and then it starts paining me.

'Q. What effect have these symptoms had upon your ability to work and your ability to get about as Before the accident? A. State that again, Mr. Butler.

'Q. What effect have these symptoms had on your ability to work? A. I can't do the work that I done Before the accident. I can't do any heavy lifting or throw anything up high over my head. It bothers me if I do it day in and day out.

'Q. It bothers you more than it did Before ? A. It bothers me more than it did Before, it even bothers me more than it did Before .

'Q. Prior to your accident of June 10, 1938, did you have any trouble doing heavy work? A. No, I could do any kind of work Before then anywhere.

'Q. Since the last hearing, in December, 1938, what type of work have you done? A. Since then?

'Q. Yes? A. Well, I went back to work on that same job.

'Q. With whom? A. With the Summit.

'Q. Who is your foreman at the Summit? A. Earl Spurrier.

'Q. Is he present today? A. Yes sir.

'Q. What type of work did you continue to do? A. I started in doing regular work, but I couldn't keep it up; so then I had to do lighter work and he put me on oiling and cleaning up the place and sewing sacks and things like that, where there was not so much working.

'Q. Did you mention any complaints about your condition to your boss? A. Sure I did. I complained to him any time it bothered me.

'Q. State whether or not at the present time...