Opinion
Dec. 26, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 482
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for respondent Industrial Commission of Colorado.
Thomas J. Koller, Denver, for petitioner.
Richard G. Fisher, Jr., Fred B. Dudley, Denver, for respondent Seifert Pontiac, Inc. and State Compensation Ins. Fund.
RULAND, Judge.
Rudolph Bienemann (claimant) field a petition to review a final order of the Industrial Commission denying his claim for workman's compensation benefits. We affirm the order of the Industrial Commission.
Claimant was employed as an auto mechanic for approximately twenty-five years prior to the onset of various symptoms which resulted in two surgical operations in February of 1971, for chronic subdural hematoma. The uncontradicted evidence shows that claimant received severe blows to his head from specific accidents occurring during his employment in 1964, 1966, and 1968.
Two medical experts were called to testify. The first, a general practitioner who had treated claimant for a number of years and who assisted in the surgery, testified that the blows claimant received in 1964 and 1966 'most probably' caused or contributed to claimant's condition. The neurosurgeon who performed the surgery, agreed that claimant's condition was caused by a blow to the head, but stated that claimant's condition probably did not result from any blow occurring five or six years prior to the surgery. Neither doctor was interrogated relative to any relationship between claimant's condition and the blow he received in 1968.
On the basis of this conflicting evidence, the Commission adopted the referee's finding that to relate the condition suffered by claimant to any incident of his employment would require the referee to indulge in speculation and conjecture. Where the Commission's findings are supported by competent evidence, those findings are conclusive on review. Jasinski v. Ginley-Soper Construction Co., 170 Colo. 52, 458 P.2d 754; Industrial Commission v. Allen, 28 Colo.App. 546, 478 P.2d 702.
Claimant also contends that reversible error resulted from the fact that the referee who made the original findings heard only the testimony of the general practitioner. Because of scheduling difficulties, a substitute referee heard the testimony of the neurosurgeon, and thereafter prepared a summary of the neurosurgeon's testimony for consideration by the referee who made the original findings. Prior to the time that the substitute referee took the testimony of the neurosurgeon, inquiry was specifically made of counsel whether there were any objections to this procedure, and no objections were stated. Therefore, the issue cannot properly be asserted on review. See Johnson v. Neel, 123 Colo. 377, 229 P.2d 939.
Additionally, it is the Commission's decision (and not the decision of the referee) which claimant seeks to overturn. See 1971 Perm.Supp., C.R.S.1963, 81--14--7. The Commission is specifically directed to review the record of the proceedings before the referee and is to make its findings based thereon or hold additional evidentiary hearings. 1971 Perm.Supp., C.R.S.1963, 81--14--6(2). In fulfilling this duty, the Commission may adopt the referee's findings. Mattison v. Industrial Commission, Colo.App., 516 P.2d 1143, announced December 11, 1973.
Order affirmed.
SILVERSTEIN, C.J., and SMITH, J., concur.