Opinion
Feb. 29, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent Industrial Commission of Colorado.
James G. Johnston, Denver, for petitioner.
Wormwood, Wolvington & Dosh, William P. DeMoulin, Denver, for respondents Crumpacker Construction Co. and State Farm Fire and Casualty Co.
PIERCE, Judge.
Claimant, Charles J. Smith, here appeals from a final award of the Industrial Commission denying workmen's compensation benefits. The Commission's denial of benefits was based upon its determination that claimant's evidence was not credible and that he had failed to sustain his burden of proof that his injuries were proximately caused by an accident arising out of and in the course of his employment as required by C.R.S.1963, 81--13--2(1)(d).
In summary, the record indicates that claimant was employed as a carpenter by Crumpacker Construction Company, referred to herein as Crumpacker, from 1968 until his employment was terminated due to lack of work in February 1970. In April 1970, claimant made an automobile trip of approximately 750 miles. Upon his return, he complained of stiffness and pain in his lower back and consulted a physician who hospitalized him and performed surgery. The physician's report regarding this treatment made no reference to any employment-related accident, but did disclose that in July 1960, claimant had undergone surgery for herniated discs in the same area of his spine then affected. At the time of his hospitalization in 1970, claimant notified Crumpacker for the first time that he had fallen from a ladder sometime between December 10th and 19th of 1969, and that his existent condition was related to that accident.
Claimant admitted that he did not consult a physician following the alleged December accident; only after he returned from his automobile trip in April 1970, did he seek medical help. Further, although claimant testified that he was unable to work after his termination, this evidence was contradicted by his testimony that he worked for another construction company for a short time in February 1970, and that he later applied for unemployment compensation benefits, holding himself out as being ready and able to work.
After, a full hearing, the referee found that claimant had failed to establish that he sustained an accident arising out of and in the course of his employment with Crumpacker. In the referee's supplemental order of March 29, 1971, it was determined that claimant's testimony was inconclusive and unconvincing and that, in light of claimant's inconsistent actions and prior statements, his testimony was not credible. Claimant's motion for rehearing was thereafter denied by the Industrial Commission which, on August 5, 1971, approved and adopted the referee's supplemental order of March 29, 1971.
On appeal, claimant contends that the Commission's denial of benefits was based upon a determination of credibility unwarranted by the evidence. We disagree. From our review of the record and from inferences legitimately deducible from claimant's testimony, the inconsistencies and contradictions therein form a sufficient basis upon which the Commission could determine that claimant's testimony was not credible and that he had failed to sustain his burden of proof. Credibility is a factual question to be decided by the Commission. Levy v. Everson Plumbing Co., 171 Colo. 468, 468 P.2d 34. When findings of the Industrial Commission are supported by the evidence, they are binding upon a reviewing court. Breit v. Industrial Commission, 160 Colo. 205, 415 P.2d 858; Hamilton v. Industrial Commission, 132 Colo. 408, 289 P.2d 369.
Contrary to claimant's next contention, there was no abuse of discretion by the Commission in its failure to allow a new hearing for the presentation of additional testimony after the adverse decision by the referee. 1969 Perm.Supp., C.R.S.1963, 81--14--6(2), provides that the Commission, in its discretion, may hold further hearings and receive evidence. There is no entitlement as a matter of right of further hearings for the production of additional evidence. Parties are expected to introduce all their evidence at the appointed hearing. We find no facts in this case which would indicate that the denial of a further hearing was an abuse of discretion.
Claimant's further allegations of error are without merit.
Order affirmed.
COYTE and SMITH, JJ., concur.