Opinion
March 25, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondents Industrial Commission of the State of Colorado; and James M. Shaffer, Director, Div. of Labor.
Criswell & Patterson, John A. Criswell, Gary Patterson, Englewood, for petitioner.
Dosh, DeMoulin, Anderson, & Campbell, J. Kent Miller, Marvin R. Vose, Denver, for respondents Garrett Freightlines, Inc. and Truck Ins. Exchange.
SILVERSTEIN, Chief Judge.
Petitioner, Bobby W. Richmond, claimed workmen's compensation benefits for back injuries allegedly sustained in an accident on April 15, 1970, while he was unloading a truck for respondent employer, Garrett Freightlines, Inc. Petitioner testified that a bumper fell and struck him in the lower part of the back. Back surgery was performed on August 9, 1971, and petitioner filed his compensation claim on December 30, 1971.
The applicable statute, Section 8--52--105, C.R.S.1973 (C.R.S.1963, 81--13--5(2)), provides that the right to compensation benefits shall be barred unless a notice claiming compensation is filed with the Division within one year after the injury. The accident and the injury do not always occur simultaneously, and the time for filing the notice begins to run 'when the claimant, as a reasonable man, should recognize the nature, seriousness and probable compensable character of his injury.' City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194.
At a hearing held on June 5, 1972, the sole issue was whether petitioner's claim was timely filed in accordance with the statute of limitations. The referee found that the claim should be disallowed since the claim was filed more than 18 months from the date of the Accident and petitioner had offered no reasonable excuse for his failure to file his claim within the statutory period. The Industrial Commission affirmed the order of the referee.
On appeal to this court, we set aside the order and remanded the cause to the Industrial Commission, Richmond v. Industrial Commission, 33 Colo.App. 21, 513 P.2d 1088, for an express determination of the date when the petitioner reasonably should have recognized the nature, seriousness, and probable compensable character of his injury. See Peterson v. Wandell-Lowe Transfer & Storage, 168 Colo. 250, 450 P.2d 660. The order thereupon entered is now before us for review.
Petitioner contends, and we agree, that the Commission's order failed to make the express determination required by the remand. Instead, the order concluded that 'the Commission finds it difficult to believe that the claimant acted as a prudent individual when in spite of pain, albeit intermittent, following the blow to his back by a falling bumper, . . . he failed to file his claim for compensation prior to December 30, 1970.' This date was corrected to 'December 30, 1971' in the Commission's Supplemental Award, but the Commission still failed to make the express finding required by this court's remand.
The employer admits that the Commission's order does not explicitly find a specific injury date but contends that the order implicitly finds that the date of injury is the same as the date of the accident. We do not agree with this contention; and, in any event, the undisputed facts do not support such an implication.
This court, on review of a final order of the Industrial Commission, will not disturb findings of fact which are supported by the evidence; however, an order based on findings not supported by the evidence will be set aside. Industrial Commission v. McIntyre, 162 Colo. 227, 425 P.2d 279; Martinez v. Industrial Commission, 32 Colo.App. 270, 511 P.2d 921.
The final order of the Commission was based, in large part, on the finding that subsequent to April 15, 1970, 'the claimant's pain was severe enough for the claimant to ask his employer four or five times through May and June of 1970 to send him to a doctor . . ..' However, the evidence clearly discloses that these events referred to by the Commission took place in April, May, and June of 1971. Since these facts are undisputed and since they were relied on by the Commission in making its determination, we will do likewise.
'(I)t is asserted that neither the lower court nor this court may substitute findings for the findings of the Industrial Commission when they are supported by substantial evidence. This is not a case involving a conflict in the evidence from which reasonable men may reach divergent conclusions. The evidence is not in dispute; thus, the task is one of applying the law to the established facts. Our responsibility and course of action is clearly unobstructed.' Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2.
These critical events establish April 1, 1971, as the earliest date when the petitioner reasonably should have recognized the nature, seriousness, and probable compensable character of his injury, and, having taken place within one year of the date of the filing of the claim, we hold that the claim was timely filed. Peterson v. Wandell-Lowe Transfer & Storage, Supra; The order is set aside and the cause is remanded to the Industrial Commission with the direction that it proceed to consider the merits of petitioner's claim.
COYTE and VAN CISE, JJ., concur.