Opinion
Feb. 16, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Duke W. Dunbar, Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for respondent, Industrial Commission of Colorado.
Stitt, Wittenbrink & Roan, P.C., Philip F. Roan, Denver, for petitioner.
Zarlengo, Mott & Carlin, Albert E. Zarlengo, Jr., Denver, for respondents, Liberty Mutual Ins. Co. and Adolph Coors Co.
COYTE, Judge.
This is an appeal from a final order of the Industrial Commission. The petitioner's main argument deals with the order of the referee which he claims is in error for failure to make specific findings of fact.
Petitioner in the present case was originally injured in March 1967 while working as a laborer for Adolph Coors Company. Liability was conceded and the petitioner began receiving compensation. In May of 1969, the petitioner, alleging his physical condition had changed for the worse, filed a petition to reopen the claim.
After receipt of evidence, the referee made findings that the petitioner's condition had in fact worsened during the interim period to the extent that he now suffered 4% Permanent partial disability, and an order was entered for compensation to be paid in accordance with the findings.
Petitioner claims that he needs surgery and that he is entitled to it at the expense of respondent and complains that the referee made no finding as to the necessity of his requested surgery.
Petitioner appealed to the Commission, which affirmed the referee's order. Thereupon appeal was made to this court.
Basically the petitioner argues that the findings are defective because they failed to state whether or not he is in need of surgery and also failed to find that respondent should pay for surgery if needed.
Such an argument is valid only if plaintiff has the right to demand payment of surgical costs. Under 1967 Perm.Supp., C.R.S.1963, 81--10--1(1)(a), an employer need only provide surgical costs resulting from an accident and incurred within six months from the date of that accident. Payments for surgery made by the employer after this period are voluntary, not compulsory. Of course, if an employer refuses voluntarily to pay for such surgery and the petitioner procures it on his own, thereby decreasing his total disability, the employer may not thereafter benefit by decreasing the disability payments due petitioner. Wishbone Restaurant v. Moya, 162 Colo. 30, 424 P.2d 119.
Since the Commission has no power to order the respondent to pay for surgery, a finding that surgery is necessary would be ineffective.
Order affirmed.
DWYER and ENOCH, JJ., concur.