Opinion
No. 75-574
Decided January 29, 1976. Rehearing denied February 19, 1976. Certiorari granted May 10, 1976.
Industrial Commission reopened workmen's compensation proceedings following an earlier court remand on the issue of temporary disability. Upon rehearing, the Commission determined that its earlier denial of a permanent disability award was error, and thereupon granted the award. The employer sought review.
Order Affirmed
1. WORKERS' COMPENSATION — No Obligation — Petitioners Appeal — Order to Reopen Proceedings — Not Reviewable — Until — Conclusion of Proceedings. Petitioners were not obligated to appeal the Industrial Commission's order to reopen workmen's compensation proceedings since such an order could not be reviewed until the conclusion of the hearings ordered therein.
2. Order to Reopen Proceedings — Specification of Reasons — Not Required — Prior Court Determination — Denial Supported by Evidence — Not Res Judicata. Industrial Commission was not required to specify its reasons for issuing an order to reopen workmen's compensation proceedings; and merely because a court had held on prior appeal that the Commission's initial denial of the award was supported by the evidence, the Commission was not precluded under a res judicata theory from conducting new hearings to determine whether its earlier denial of a permanent disability award was proper.
3. Claim for Disability Benefits — Initial Denial — Continuing Disability — New Hearings Ordered — Sufficiency of Grounds. Where claimant for workmen's compensation benefits continued, in spite of therapy and medication, to suffer from work related injuries two years after disability award had been denied, sufficient grounds existed for the Industrial Commission's decision to order new hearings on the matter.
Review of Order from the Industrial Commission of the State of Colorado
William J. Baum, Francis L. Bury, Robert S. Ferguson, for petitioners, Berkley Moving Storage Company, and Division of State Compensation Insurance Fund.
J. D. MacFarlane, Attorney General, Jean E. Dubofsky, Deputy Attorney General, Edward G. Donovan, Assistant Attorney General, John Kezer, Assistant Attorney General, for respondent Industrial Commission.
Vernon P. Playton, for respondent Paul Eubank.
Division III.
This is a proceeding to review an order entered by the Industrial Commission affirming a referee's award of compensation for permanent partial disability. The disability was the result of an injury which claimant, Paul Eubank, suffered while working for petitioner Berkley Moving Storage Company. The Commission initially concluded that Eubank was not entitled to an award for permanent disability. That ruling was affirmed by this court on appeal. Eubank v. Industrial Commission, 514 P.2d 339 (Colo.App.). However, we remanded the case to the Commission for a proper computation of the wage rate used in determining the amount of the award granted for temporary disability.
After that matter had been resolved on remand, the Director of the Division of Labor concluded that the prior rulings of the Commission concerning claimant's alleged permanent disability were "premature and in error" and ordered a reopening of the case for further testimony and new findings on that issue. After rehearing, the referee found that claimant had suffered a "permanent partial industrial disability . . . in the amount of 3 percent as a working unit. This order was affirmed by the Commission.
On appeal petitioners now argue that the earlier judgment of this court prevents, by virtue of the doctrine of res judicata, reopening of the permanent disability issue by the Director. Alternatively, they assert that the Director must make findings of fact in support of his decision to reopen the case. We affirm the award of permanent partial disability.
[1] At the outset we reject respondents' argument that, since petitioners failed to undertake a timely appeal of the order reopening the case, the merits of their appeal should not be considered. In Stanley Hotel v. Thomas, 153 Colo. 503, 387 P.2d 27, the Supreme Court held that an order reopening a workmen's compensation claim is merely a determination by the Commission that it has jurisdiction to consider whether there has been error, mistake, or a change in claimant's condition. It held that such an order is not reviewable until the conclusion of the hearings ordered therein, and that participation in those hearings does not preclude a later appeal of the order reopening the case.
[2] As to petitioners' claim that findings supporting the reopening were not made, § 8-53-119, C.R.S. 1973, provides that, within six years of the accident, the Director of the Division of Labor may, upon his own motion, reopen any case on the grounds of error, mistake, or change in condition. See Colorado Fuel Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153; Graden Coal Co. v. Yturralde, 137 Colo. 527, 328 P.2d 105. Nothing in the statute requires the director to set forth in his order the reasons for reopening the case, and it would be a hypertechnical imposition for this court to require him to do so since any order or award entered in the reopened case must of necessity be supported by written findings which are subject to judicial review. See Colorado Fuel Iron Corp. v. Industrial Commission, 85 Colo. 237, 275 P. 910, see also Clayton Coal Co. v. Zak, 94 Colo. 171, 29 P.2d 374.
The first time this case was before us, we held only that the Commission's conclusion that claimant was not entitled to an award for permanent disability was sufficiently supported by the evidence. That holding does not preclude the Commission from reopening the case, Gregorich v. Industrial Commission, 117 Colo. 423, 188 P.2d 886; Coursey v. Industrial Commission, 83 Colo. 490, 267 P. 202, nor does it prevent the Commission from altering its award when that modification is supported by specific findings based upon competent evidence. See Sherratt v. Rocky Mountain Fuel Co., 94 Colo. 269, 30 P.2d 270. A specific finding in the new award that error, mistake, or change in circumstances has occurred is unnecessary when the findings as a whole make it clear that the Commission regards one of these events as having occurred. See Clayton Coal Co. v. Zak, supra. See also Colorado Fuel Iron Corp. v. Industrial Commission, supra.
[3] The Commission rested its initial decision in this case on medical testimony that claimant's injury and temporary disability could be cured by therapy and medication. More than two years after the issuance of that order, claimant testified that his condition had not been remedied. This testimony was sufficient to support the Commission's new findings and to justify modification of its earlier order, and those rulings will not be disturbed on review by this court. See Industrial Commission v. Bennett, 166 Colo. 101, 441 P.2d 648; Ruby v. Yellow Cab, Inc., 163 Colo. 297, 430 P.2d 463.
We have considered the other arguments of petitioners and have found them to be without merit. Order affirmed.
CHIEF JUDGE SILVERSTEIN and JUDGE PIERCE concur.