Opinion
Jan. 7, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
John Iacoponelli, Denver, for petitioner. L. F. Butler, Lakewood, for respondent John Kaesik.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondents Department of Labor and Employment, Division of Labor; and The Industrial Commission of the State of Colorado.
Page 972
BERMAN, Judge.
This is a review of an order from the Industrial Commission affirming an award of workmen's compensation. We affirm.
On March 27, 1972, John Kaesik, claimant, filed his claim for compensation for injuries to his left groin area which he claimed to have suffered on January 14, 1972, while employed as a repairman-laborer at Sears Refrigeration Company in Denver, petitioner employer herein. He claims his injuries were incurred as the result of his lifting a heavy refrigerator compressor while repairing it at the Columbine Country Club.
Several hearings were held before a referee of the Industrial Commission, at the close of which the referee made findings of fact and entered an order on December 7, 1972 awarding compensation.
On December 14, 1972, the employer filed a petition for review of the referee's order and subsequently, on September 14, 1973, filed a supplemental petition on the basis of newly discovered evidence. No further hearings were held. In response to these petitions, the referee entered a supplemental order, again setting out extensive findings of fact. The referee amended his previous finding that the employee had sustained a 'left inguinal hernia' to read 'an injury to the left inguinal area,' and reaffirmed his order of December 7, 1972.
In his supplemental order, the referee specifically addressed each of the nine specifications of error alleged by employer in his petition for review filed December 14, 1972. The order did not specifically address the issue of newly discovered evidence raised in the supplemental petition; however, the introductory paragraph of the referee's order specifically refers to the supplemental petition as a matter being considered.
On March 5, 1974, the Industrial Commission entered an order adopting and affirming the supplemental order of the referee. The employer's petition for review of the Commission's order was denied and this review followed.
The primary focus of the employer's attack upon the findings of the referee concerns the referee's treatment of the 'newly discovered evidence' asserted by the employer in the supplemental petition for review. This attack is based on the employer's claim that the referee refused to allow him to reopen the hearing for the purpose of his questioning claimant concerning certain testimony claimant had given in a previous lawsuit wherein he had sued for injuries sustained. Employer's contention is that had the referee permitted him this opportunity to explore this 'newly discovered evidence,' the testimony of the claimant in the previous lawsuit regarding his injury then suffered, and which he now contends has been aggravated, would have been such as to have discredited the claimant totally and in effect would have compelled a different conclusion by the referee.
It is true that the referee omitted any reference to the 'newly discovered evidence' in his supplemental order and that the supplemental order contained no specific finding regarding the credibility of the claimant's testimony. However, such facts do not mandate a conclusion that the 'evidence' was not considered.
From the record, it is clear that the referee had the employer's supplemental petition before him for consideration two months before the supplemental order was issued.
'It is not required . . . that the degree of specificity on Industrial Commission findings encompass the specific rejection of evidence which was not persuasive. In order to comply with the requirements of C.R.S.1963, 81--14--6, it is necessary only that the evidentiary and ultimate findings be specific as to that evidence which the Commission deems to be persuasive and determinative of the issues to be resolved.' Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48. The credibility of witnesses, as well as the weight of the testimony, is peculiarly within the province of the Commission. Colorado Springs Motors, Ltd., v. Industrial Commission, 165 Colo. 504, 441 P.2d 21. Similarly, the inferences and the conclusion to be drawn from the evidence in a compensation case are matters for the Commission, and not the court. Crandall v. Watson-Wilson, Supra.
The employer also argues that the evidence before the Commission was insufficient to support the findings and order of the Commission. This is not borne out by our examination of this record. There is ample evidence to support the findings. Where findings of the Industrial Commission are supported by the evidence, they may not be overturned by a reviewing court. Crandall v. Watson-Wilson, Supra; Industrial Commission v. Allen, 28 Colo.App. 546, 478 P.2d 702.
The order of the Commission is, therefore, affirmed.
ENOCH and VanCISE, JJ., concur.