Opinion
Feb. 11, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 361
James A. May, Francis L. Bury, R. S. Ferguson, Denver, for respondents City and County of Denver, and State Compensation Insurance Fund.
Benjamin R. Loye, P.C., Wheat Ridge, for petitioner.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent Industrial Commission of Colorado.
COYTE, Judge.
Petitioner Spikner appeals from an order of the Industrial Commission. He contends that the percentage of permanent partial disability awarded to him was inadequate. We disagree and affirm the order.
This case was previously before us in Spikner v. City & County of Denver, 513 P.2d 734 (not selected for official publication). We remanded so that specific findings of fact could be made according to 1971 Perm.Supp., C.R.S.1963, 81--4--6(1), now s 8--53--106(1), C.R.S.1973. On January 4, 1974, the Industrial Commission issued its Supplemental Findings of Fact and Award and again entered an order awarding petitioner 7 1/2% Permanent partial disability.
Petitioner contends that the finding of 7 1/2% Permanent partial disability is insufficiently detailed and unsupported by the evidence. We disagree. In its supplemental findings of fact and award, the Commission set out, in detail, the opinions of three doctors and reaffirmed the earlier finding of the referee and Commission. The weight and sufficiency of the evidence are matters solely within the discretion of the Commission, and where, as here, the findings of fact are based on conflicting evidence, those findings are conclusive on review. Crandall v. Watson-Wilson Transportation Systems, Inc., 171 Colo. 329, 467 P.2d 48.
As stated in Industrial Commission v. Colorado Fuel & Iron Corp., 135 Colo. 307, 310 P.2d 717,
'The commission was not bound to accept the highest nor the lowest estimate made by the medical witnesses as to claimant's disability if any existed, nor any exact intermediate estimate of disability. It was its function and duty in the light of this conflicting opinion testimony and on a consideration of all the evidence in the case, including the testimony of claimant, to find first, whether there was permanent disability, and, second, if there was, its extent. . . .'
Spikner also contends that the Commission erred in allocating only some of his disability to the accident. Section 8--51--108(1)(b), C.R.S.1973, (C.R.S.1963 81--12--9(1)(b)) directs:
'In determining permanent partial disability, the director shall ascertain in terms of percentage the extent of general permanent disability Which the accident has cause . . ..' (emphasis supplied) Again, it is within the discretion of the Commission to determine the amount of disability caused by the accident and where there is sufficient evidence to support its finding, we will not disturb that finding on review. See Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087. Here, doctors agreed that there was a pre- existing degenerative condition of petitioner's back. We find no abuse of discretion in determining the amount of disability caused by the accident.
Order affirmed.
SMITH and RULAND, JJ., concur.