Opinion
June 23, 1970.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 687
Hoyman & Starlin, Denver, James I. Shepard, for petitioner.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for Industrial Commission of Colorado.
Alious Rockett, Francis L. Bury, Feay Burton Smith, Jr., Denver, for Trautman and Shreve, Inc. and State Compensation Ins. Fund.
Before COYTE, DUFFORD and PIERCE, JJ.
COYTE, Judge.
This case involves review of a decision of the Industrial Commission in a proceeding under the Workmen's Compensation Act.
On May 8, 1968, Harold Barnes, hereinafter referred to herein as the claimant, was injured in the course of his employment with Trautman and Shreve, Inc.
Claimant did not file a claim with the Commission until June 18, 1969. The State Fund, the insurance carrier, denied the claim in that it was not filed within the statutory period of one year. Hearing was held and the referee found that the claimant was injured in an accident arising out of the course of his employment on May 8, 1968; that claimant as a reasonable man should have recognized the nature, seriousness, and probable compensable character of his injury on the date it occurred on May 8, 1968; that claimant failed to file a notice claiming compensation until June 18, 1969; and that there was no jurisdiction to hear and determine the matter.
On review the Commission approved, affirmed and adopted the referee's order as its own.
Claimant argues that he had a reasonable excuse for the late filing and that in any event the injury caused by the accident developed later, just prior to the filing of the claim.
Claimant testified that on May 7 or 8, he was lifting a section of boiler when he felt a sharp pain in his neck at the base of his skull. He knew that there was something wrong and that he had injured himself. A few days after the accident he went to his doctor and after seeing the doctor three times, went to another doctor, whem he saw approximately five times. The second doctor prescribed a cervical collar, which claimant wore for about one week. He worked part-time for approximately two weeks.
On June 27, 1968, the claimant was notified by the Fund that it would not be liable for the second doctor's treatments.
Claimant knew that he must file a claim in order to receive compensation. It wasn't until June 1969 that claimant, while still being bothered by pains in his neck, visited an orthopedic surgeon.
The statute with which we are herein concerned is C.R.S.1963, 81--13--5(2), which provides in part as follows:
'* * * The right to compensation and benefits, as provided by this chapter, shall be barred unless within one year after the injury, or after death resulting therefrom, a notice claiming compensation shall be filed with the Commission. * * *'
In this case the Commission made a specific factual determination that the claimant as a reasonable man should have recognized the nature, seriousness and probable compensable character of his injury at a date more than one year prior to the date in which he filed his claim with the Commission. This meets the test as set forth in City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194, where the supreme court held that the one-year statutory period of the filing of claims commenced to run '* * * when the claimant, as a reasonable man, should recognize the nature, seriousness and probable compensable character of his injury.' The Commission found that claimant was injured on the date of the accident and should have so known. From the record in this case we cannot say that the Commission acted arbitrarily or abused its discretion in ruling that the claimant acted unreasonably in delaying the filing of his claim.
As stated in Crandall v. Watson-Wilson Transportation, System, Inc. (Industrial Commission), Supreme Court, 467 P.2d 48, decided March 30, 1970:
'The weight and sufficiency of the evidence, and the inferences and conclusions drawn therefrom, are matters solely within the prerogative of the Industrial Commission. Hamilton v. Industrial Commission, 132 Colo. 408, 289 P.2d 639; Industrial Commission v. Valdez, 101 Colo. 482, 74 P.2d 710. Also, the matter of determining in the first instance the probative effect of the evidence in cases where the evidence is in conflict, remains exclusively with the Industrial Commission. American Mining Company v. Zupet, 101 Colo. 238, 72 P.2d 281. And, the Industrial Commission's findings based upon conflicting evidence are conclusive on review. Vanadium Corporation of America v. Sargent, 134 Colo. 555, 307 P.2d 454.'
Order affirmed.
DUFFORD and PIERCE, JJ., concur.