Opinion
No. 71-374
Decided December 14, 1971. Rehearing denied January 25, 1972. Certiorari granted February 28, 1972.
Award of permanent-partial disability compensation was not appealed, but claimant's employer and its insurer subsequently filed petition to reopen. Industrial Commission denied the petition, and appeal was taken.
Order Affirmed
1. WORKERS' COMPENSATION — Disability Award — No Appeal — Refusal to Reopen — Not — Abuse of Discretion. Where referee granted workmen's compensation claimant a permanent-partial disability award from which no appeal was taken, and referee found subsequent petition to reopen was based on facts and evidence that were clear and should have been within knowledge of petitioners at the time of the award, Industrial Commission's refusal to reopen the claim was not an abuse of discretion.
Review of Order from the Industrial Commission of the State of Colorado
Alious Rockett, Francis L. Bury, R. S. Ferguson, for petitioners.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Peter L. Dye, Assistant, for respondent Industrial Commission of Colorado.
McCarthy and Reneau, Thomas E. McCarthy, for respondent Horace H. Wayne.
This is a workmen's compensation case. Claimant, Horace H. Wayne, sustained injury to his left eye, which ultimately resulted in enucleation of the eye on November 25, 1969. The referee entered an award for medical expense and 139 weeks compensation for permanent-partial disability compensation in accordance with C.R.S. 1963, 81-12-4(1)(gg). There was no appeal from this order.
Petitioners subsequently filed a petition to reopen, based upon an alleged error of the Commission in disregarding the apportionment statute, and requested additional hearings in order to determine the percentage of pre-existing disability. The petition was denied by the Industrial Commission. Petitioners appeal. We affirm.
Petitioners contend that the Commission erred in denying the petition to reopen because the Commission neglected to follow the apportionment statute, C.R.S. 1963, 81-8-2(2), in ordering a permanent-partial disability award of 139 weeks compensation.
The findings of the referee were adopted by the Commission, and provide in part as follows:
"Prior to the taking of medical testimony the respondent [petitioner in this court] wrote a letter to the Division of Labor dated May 14, 1970, wherein it was stated and I quote 'that the enucleation was due to the accident, and that the claimant is entitled to 139 weeks therefrom.' A copy of this letter was sent to the claimant's counsel who reasonably considered this to be an offer to stipulate to the amount of permanent disability due the claimant and who promptly stated in a letter to the Referee dated May 18, 1970, that '. . . my client will accept the 139 weeks stipulated. . . .' The apparent agreement of the parties concerning the permanent disability appeared to the Referee to be reasonable and to the best interest of the claimant and left only the amount of temporary total disability for determination by the Referee.
"The Referee therein entered his Order on May 25, 1970, determining the amount of temporary total disability as adduced from the evidence and affirming the apparent stipulation.
"The respondent received the Referee's Order on May 25, 1970, took no action whatsoever to the petition to review the Order and the first indication that the respondent's were dissatisfied with the Order came on June 23, 1970, when they asked the Director of Labor for time to prepare a Petition to Reopen.
. . . .
"The letter written by the respondent on May 14, 1970 wherein it is stated in part '. . . the claimant is entitled to 139 weeks . . . is a clear and unambiguous offer to settle and stipulate, and that the response from the claimant dated May 15, 1970, accepted the offer and constituted an agreement and stipulation which was then affirmed by the Order of the Referee dated May 25, 1970. The Referee hereby finds that it was the intent of the parties to stipulate that because of the claimant's enucleation of his eye he was entitled to 139 weeks of compensation.
. . . .
"The respondents failed to avail themselves of the statutory right to Petition to Review the Referee's Order within the limits set forth. The Referee's Order having become final, the Referee will not countenance the 'back door approach' utilized by the respondent in filing a 'Petition to Reopen' which was based on facts and evidence which were clear and should have been within the knowledge of the respondent at the time the Order was issued on May 25, 1970."
Since no appeal was taken from the award, it became final. The case could only be opened in the Commission in its discretion desired to open it.
[1] The fact that the Commission refused to reopen to permit petitioners to substitute action under 1969 Perm. Supp., C.R.S. 1963, 81-14-19, for the right to review granted them by 1969 Perm. Supp., C.R.S. 1963, 81-14-6, which right they had lost by inaction, does not in our view amount to an abuse of discretion. Indust. Comm. v. Cutshall, 164 Colo. 240, 433 P.2d 765.
Other matters covered in the oral argument were not raised by the petition for review and will therefore not be considered herein.
Order affirmed.
JUDGE DWYER and JUDGE DUFFORD concur.