Opinion
Aug. 10, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Zarlengo, Mott & Carlin, Denver, for respondents Martin K. Eby Const. Co. and American Employers' Ins. Co.
Thomas B. Masterson, Denver, for petitioner.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent The Industrial Commission.
DWYER, Judge.
This is an appeal from a final order of the Industrial Commission in a proceeding arising under the Workmen's Compensation Act.
On October 29, 1963, the claimant Wilcox was injured in an accident arising out of and in the course of his employment. His claim for permanent partial disability from this accident was denied on May 12, 1965, by a final order of the Commission. Claimant subsequently filed a series of five petitions to reopen his claim. All of the petitions to reopen were denied.
The last of these petitions was filed June 28, 1967, and claimant asked the Commission to review its previous award of its own motion pursuant to C.R.S.1963, 81--14--19, on the ground of error, mistake or a change in condition. The petition was supported by a physician's report dated August 14, 1969, in which the physician stated that claimant was then permanently partially disabled, and that such disability was attributable to the accident of October 29, 1963. Hearings on the petition were held before a referee of the Commission. On January 26, 1970, the referee ordered the petition to reopen dismissed and denied. The order of the referee recited that a previous order of the Commission dated March 25, 1968, contained the specific finding that claimant's disability was not caused by the accident. The order further recited that such finding was based upon conflicting medical reports and testimony of several physicians, including the testimony of the physician whose report accompanied the last petition to reopen. The referee then made the following findings and order:
'From the evidence adduced at the hearing and a review of the evidence before the prior Referee as it relates to the allegations of error and mistake the Referee finds:
'1. That the prior adjudication that claimant's low back condition was not fairly attributable to his industrial accident of October 29, 1963, was well supported by the evidence and the present additional evidence regarding causation is insufficient to make any finding that the said prior adjudication was an error or mistake.
'2. That the allegation of change of condition is immaterial since such condition is not fairly attributable to claimant's industrial accident of October 29, 1963.
'THEREFORE, IT IS ORDERED: That this petition to reopen be, and the same hereby is, dismissed and denied.'
The referee's order was reviewed, approved and adopted by the Commission.
Claimant seeks reversal of the Commission's order because the findings and order of the referee are based in part upon 'a review of the evidence before the prior referee,' although no transcript of the testimony before the prior referee was in existence at the time the referee's order was entered. The record reflects that after the referee's order claimant filed a petition for review on February 10, 1970. Thereafter, on claimant's motion, the Commission ordered a transcript of the testimony at the hearing before the prior referee and after the transcript was filed April 2, 1970, claimant was allowed to file a 'perfected' petition for review. When the Commission, on November 9, 1970, entered its order approving the referee's order, it had before it the transcript which was not available to the referee. The order on review by this court is the final order of the Commission and not the order of the referee. The record before the Commission was complete and its order, based upon the entire record, is not open to challenge on the basis that part of the record was not available to the referee when he entered his order.
The rule applicable to judicial review of orders by the Commission denying petitions to reopen is stated in Industrial Commission v. Vigil, 150 Colo. 356, 373 P.2d 308:
'The refusal of the Commission to exercise its authority under C.R.S. '53, 81--14--19 to review a claim which is otherwise closed, has been before this Court on numerous occasions, and it has been consistently held that the Commission's action in refusing to reopen and review a case cannot be set aside by the courts except in case of fraud or clear absue of discretion. Beckley v. Industrial Comm., 112 Colo. 135, 146 P.2d 990; Industrial Comm. v. Kokel, 108 Colo. 353, 116 P.2d 915; Contes v. Metros, 113 Colo. 1, 153 P.2d 1000, and many others.'
The record here discloses no abuse of discretion on the part of the Commission in refusing to exercise its authority to reopen and review its previous orders.
The order is affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.