Opinion
No. 74-068
Decided August 13, 1974. Rehearing denied September 4, 1974. Certiorari granted November 4, 1974.
From workmen's compensation award based on finding that claimant had a 20 percent total industrial disability of the right leg measured at the knee, employer appealed.
Affirmed
1. WORKERS' COMPENSATION — Scheduled Loss Provision — Permanent Partial Disability — Not Both Used — No Error — Award As Made. Although in awarding workmen's compensation benefits, Industrial Commission could not use both the scheduled loss provisions and the permanent partial disability provisions of the Act, and although the Commission did consider the factors enumerated in the permanent partial disability provisions, neither the referee nor Commission made any reference to those provisions and the percentage of disability awarded claimant was based upon the scheduled loss provisions; thus, there was no error in the award as made.
Review of Order from the Industrial Commission of the State of Colorado
Robert S. Ferguson, for petitioners.
John P. Moore, Attorney General, John E. Bush, Deputy Attorney General, Peter L. Dye, Assistant Attorney General, for respondent Industrial Commission of Colorado.
Ashen Fogel, John F. Griebel, for respondent Larry Paul Davis.
Davis was employed by World of Sleep, Inc., as a truck driver. He sustained an accidental injury to his right knee in the course of his employment. Surgery was performed on the knee and he reached maximum medical improvement on April 13, 1972.
In the resulting workmen's compensation proceedings, the Industrial Commission adopted the findings of the referee who had found that Davis had a total industrial disability of 20% of the right leg measured at the knee, which consisted of 10% functional disability and 10% disability caused by the difficulty Davis experienced in continuing his occupation as a truck driver arising from injury to the knee. We affirm.
Petitioners seek review contending that the Commission has discretionary power to compensate Davis for his disability under either the scheduled loss provision of the Act, C.R.S. 1963, 81-12-4 as amended, or under the permanent partial disability provisions, C.R.S. 1963, 81-12-9 as amended, but that the Commission had erroneously used both methods in determining compensation.
Davis testified that he was principally employed as a truck driver, that the residual disability of his knee caused him considerable difficulty in driving a truck and walking, as the knee would give out and lock, and that the knee was continually painful, tired easily, and could not be knelt upon. 1969 Perm. Supp., C.R.S. 1963, 81-12-4(7), provides as follows:
"Where an injury causes the loss of use or partial loss of use of any member specified in the foregoing schedule, the director may determine the disability suffered and the amount of compensation to be awarded, by awarding compensation which shall bear such relation to the amount stated in the above schedule for the loss of a member as the disabilities bear to the loss produced by the injuries named in the schedule and such amount shall be in addition to compensation for temporary disability, or the director may award compensation under the permanent partial disability section of this article as the director in his discretion may determine from the particular facts in each case."
As defined in Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087.
"The term 'disability' as used in the Workers' Compensation Act, means industrial disability or loss of earning capacity, and not mere functional disability."
[1] We agree that the Commission could not use both of the above cited sections of the Act in arriving at its percentage of disability. However, there is no prohibition in the above statute or in Colorado case law preventing the Commission from considering disability factors other than medical evidence concerning medically functional disability in determining the disability percentage to be applied to the appropriate subdivision of the above statute. See Colorado Fuel Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153; Byouk v. Industrial Commission, supra. The Commission did consider the factors that are enumerated in 1969 Perm. Supp., C.R.S. 1963, 81-12-9, in reaching its decision. However, in the instant case, neither the referee nor Commission made any reference to the latter section. The percentage of disability was based upon 1969 Perm. Supp., C.R.S. 1963, 81-12-4(7).
Order affirmed.
JUDGE ENOCH and JUDGE RULAND concur.