Opinion
Oct. 1, 1974.
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This case has been marked 'not for publication' by the court.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., for respondents Director of the Div. of Labor of the Dept. of Labor and Employment of the State of Colorado and the Industrial Commission of the State of Colorado.
William Litvak, Denver, for petitioner.
Zarlengo, Mott & Zarlengo, Albert E. Zarlengo, Jr., Denver, for respondents Stephen A. Walkinshaw and Liberty Mut. Ins. Co.
SILVERSTEIN, Chief Judge.
Petitioner, Joe N. Goodmon, sought workmen's compensation benefits for a back injury sustained in an admittedly compensable accident which occurred in the course of his employment as a truck driver. He received compensation for temporary total disability. A hearing was held before a referee who found that petitioner had suffered permanent partial disability equivalent to 3 3/4 percent as a working unit. The Industrial Commission approved, affirmed, and adopted the referee's order, in its entirety, as its final order. Petitioner seeks review of the final order on the grounds that (1) the orders of the referee and the Commission failed to set forth the evidentiary or ultimate facts on which the award was based; and that (2) the Commission, in determining the extent of permanent partial disability, failed to consider all of the factors enumerated in 1971 Perm.Supp., C.R.S.1963, 81--12--9(1)(b). We remand the cause to the Commission for further proceedings.
I.
In the order which is the subject of this review the Commission found 'that the claimant has suffered permanent partial disability equivalent to 3 3/ 4 percent as a working unit as a direct result of his accident.' However, the order contained no references to any of the medical reports in evidence or the testimony adduced at the hearing.
1971 Perm.Supp., C.R.S.1963, 81--14--6(1), requires that, following a petition to review an award, the referee shall 'make findings of fact which shall include all evidentiary and ultimate facts necessary to support such award.' No such findings were made by the referee. Further, the Commission simply adopted the referee's order and made no findings of evidentiary or ultimate facts of its own upon which it based its award of 3 3/4 percent permanent partial disability.
The sufficiency of a finding must be apparent from the order of which it is a part, Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761, and the absence of such findings in the Commission's final order requires a remand of the case. Tague v. Coors Porcelain Co., 29 Colo.App. 226, 481 P.2d 424.
II.
Petitioner asserts that the referee and the Commission completely ignored the petitioner's undisputed testimony concerning his unsuccessful efforts to obtain employment after his injury. The pertinent statute, 1971 Perm.Supp., C.R.S.1963, 81--12--9(1)(b), requires that:
'In determining permanent partial disability, the director shall ascertain in terms of percentage the extent of general permanent disability which the accident has caused, taking into consideration not only the manifest weight of the evidence, but the general physical condition and mental training, ability, former employment, and education of the injured employee.'
In Colorado Fuel & Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153, the Colorado Supreme Court held that, in the exercise of its discretion, the Commission should determine the degree of disability of an injured workman in terms of industrial disability or loss of earning capacity, as opposed to mere functional disability.
The medical reports in the record contain doctors' estimates of petitioner's functional disability ranging from 3 percent to 5 1/2 percent. In addition, the claimant testified at the hearing that he still suffers from back pain, that he cannot sit for long periods of time, and that he has difficulty straightening up in the mornings. He further testified, without contradiction, that he has been refused employment as a truck driver by seven different employers in three states because of his back operation, that he has only a seventh grade education, and that truck driving is the only occupation he knows.
The Commission draws our attention to the presumption that, in making its award for disability, it considered and gave due weight to all of the factors enumerated in the statute. See Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087. However, this presumption cannot be indulged where the order contains no findings of evidentiary or ultimate fact to establish a basis for the award. That is particularly true where, as here, the record contains evidence which, if true, would be incompatible with the order entered. Since the findings below do not specify what evidentiary facts were relied upon to reach the 3 3/4 percent award, we are unable on review to determine whether the Commission and the referee considered all, or any, of the factors required by 1971 Perm.Supp., C.R.S. 1963, 81--12--9(1)(b). Womack v. Industrial Commission, Supra.
The order is set aside and the cause remanded to the Commission for further proceedings consistent with this opinion.
PIERCE and SMITH, JJ., concur.