Womack v. Industrial Commission
| Decision Date | 10 March 1969 |
| Docket Number | No. 23586,23586 |
| Citation | 168 Colo. 364,451 P.2d 761 |
| Parties | Robert B. WOMACK, Plaintiff in Error, v. INDUSTRIAL COMMISSION of Colorado, Bovee and Crail Construction Company, and Continental Casualty Company, Defendants in Error. |
| Court | Colorado Supreme Court |
Philip Hornbein, Jr., Roy O. Goldin, Denver, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for defendant in error Industrial Comm. of Colo.
Margaret R. Bates and Richard T. Goold, Denver, for defendant in error Continental Casualty Co.
This is a workmen's compensation case. Plaintiff in error Womack will be referred to as claimant and defendants in error as Commission, employer, and insurer, respectively. Claimant brings this writ of error from the judgment of the district court, which affirmed the Commission's order that claimant has a permanent partial disability of 15% As a working unit.
In substance, the claimant contends that the uncontroverted evidence before the Commission establishes that the claimant is permanently and totally disabled, and therefore the lower court's affirmance of the Commission's award is erroneous. The claimant further argues that the Commission's findings are inadequate because there are no specific evidentiary findings upon which to premise a 15% Permanent partial disability as a working unit. For this reason, it is also contended that the affirmance of the Commission's award is error.
The record before the Commission reflects a situation of some confusion and complexity. However, only those details concerning the hearings, procedures and facts which are demonstrative of the issue to be resolved will be herein discussed. In essence, it is our view that the Commission because of either no specific findings or inadequate findings has not made an award which can be substantiated. We therefore hold that the judgment of the trial court must be reversed and that this matter be remanded to the Commission for fulfillment of its fact finding function, and in the discretion of the Commission, for a further hearing for this purpose.
On April 21, 1961, claimant sustained a back injury in the course of his employment as a pipefitter. In 1961, he was hospitalized three times for treatment of his injury, and in June 1962, he was hospitalized for performance of a laminectomy. Covering the period from June 1962 to November 1966, the record contains 11 medical reports from 9 doctors concerning claimant's condition as a result of his work injury. The reports disclose that in 1965 claimant was using crutches or a cane, and that in 1966 he had some atrophy of his left leg and foot. In August 1965, Dr. Freed, a neurosurgeon, reported that 'he (the claimant) appears to be totally disabled from an industrial standpoint, due to functional nervous illness.'
In December 1965, claimant was examined by two psychiatrists who reported that claimant had made 'an existential adaptation to his present condition' and had sustained a post-traumatic neurosis with 10% Disability. Although the treating psychiatrist reported that claimant 'was as co-operative as he could be,' psychotherapy for claimant was discontinued because the doctor found that further treatment would be useless.
In August 1966, Dr. Barnard, an orthopedist to whom the Commission had referred claimant for examination, found that claimant had an unstable back due to an incomplete fusion of his sacro-lumbar joint, and that his psychological attitude was not conducive to improvement. The doctor concluded that 'He (claimant) is essentially 100% Disabled for doing all kinds of work.' On December 21, 1966, claimant's last hearing before a referee was held for the purpose of medical evaluation. Dr. Barnard was the sole medical witness, and he assessed claimant's physical disability, exclusive of his leg disability, at 20% As a working unit in his back. The doctor further stated:
Dr. Barnard testified that further surgery might improve claimant's condition, but declared that he would undertake the surgery only upon condition that claimant's attitude toward further treatment could be changed to one of hope and confidence. The employer and insurer thereupon offered to pay for the additional surgery upon condition that Dr. Barnard would undertake to perform it. The claimant refused the surgery thus conditionally proferred upon the ground of the 'uncertainty of, and disagreement among' the doctors who had examined him.
Claimant received temporary total disability payments from April 22, 1961 to February 6, 1963. On February 28, 1963, employer admitted special liability to claimant for permanent partial disability of 7 1/2% As a working unit. On August 5, 1963, claimant filed a petition to re-open his claim, upon the ground that he had a permanent total disability. On October 14, 1965, a hearing was held before referee Thomas E. Kelly. Testimony of claimant, together with the testimony of, and films offered by, private investigators, hired for insurer and employer, were received into evidence. At this hearing, referee Kelly found that claimant's condition had undergone such a serious change since the previous award of 7 1/2% That the Commission should make a further medical evaluation of the case. On March 7, 1966, a hearing for the purpose of medical testimony was held before referee Kelly, and the sole witness was a psychiatrist, who testified that claimant had a 10% Psychiatric disability for any kind of work. The death of referee Kelly occurred before he had made his findings.
On December 21, 1966, a hearing for the medical testimony of Dr. Barnard was held before referee James H. Murphy. The films taken by private investigators employed on behalf of employer and insurer were not shown during the hearing but apparently were thereafter viewed privately by the referee with the consent of the parties. On March 29, 1967, referee Murphy entered a Supplemental Order, finding that claimant has a permanent partial disability of 15% As a working unit, or an increase of 7 1/2% Over the previous award, directly attributable to claimant's work injury. The referee's finding reads In toto as follows:
Claimant filed a petition for review, which the referee considered and then issued a Supplemental Order, dated August 10, 1967, which affirmed his prior Supplemental Order, but made the following additional finding:
'Referee, having again reviewed the entire file, finds that the only evidence on which a finding of permanent total disability could be made would be from the claimant's own testimony that he is not able to return to his own trade or do anything else in the labor field. To rebut this, the respondents had motion pictures taken of the claimant without his knowledge which show him performing most of the activities and the movements which he testified he was unable to do. The medical opinions are varied and in conflict. They all agree that the claimant's disability is a composite of organic and psychiatric, with more emphasis on the psychiatric aspect since the greater portion of their findings are based on the claimant's suggestive complaints which are entirely functional in nature.
Dr. Barnard, a specialist in orthopedics, did recommend...
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