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Booher v. Las Animas Sch. R-88

Colorado Court of Appeals. Division I
Nov 23, 1971
491 P.2d 104 (Colo. App. 1971)

Opinion

No. 71-103

Decided November 23, 1971.

District court determined Industrial Commission's award of only minimum benefits to workmen's compensation claimant was in error. From award of increased benefits, Commission appealed.

Affirmed

1. WORKERS' COMPENSATIONDistrict Court — Not — Disregard Factual Findings — Properly Determined — Law Incorrectly Applied. In determining that workmen's compensation claimant was entitled to an increased award of benefits, district court did not disregard the findings of fact of Industrial Commission; but rather, serving a proper and legitimate function in its reviewing capacity, the district court acted upon the factual findings of the Commission and determined that the Commission had incorrectly applied the law to those factual findings.

2. Rate of Compensation — Applicable — Injury — Member — Family Unit. Where family unit of which workmen's compensation claimant was a member was employed to perform services of driving a school bus and where these services which claimant was performing at the time of her injury were to be recompensed at the rate of $300 per month, district court was correct in determining that claimant's award of benefits should have been based upon this rate of compensation; and it was immaterial that all such compensation was paid to claimant's father as the primary member of the family unit.

Appeal from the District Court of the City and County of Denver, Honorable Edward J. Byrne, Judge.

Laurence A. Ardell, for plaintiff-appellee.

Alious Rockett, Feay Burton Smith, Jr., Francis L. Bury, for defendants-appellants, Las Animas County School District R-88 and Division of The State Compensation Insurance Fund in the Department of Labor and Employment, State of Colorado.

Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Peter L. Dye, Assistant, for defendants-appellants, Industrial Commission of Colorado and Director of Division of Labor in the Department of Labor and Employment, State of Colorado.


This case constitutes an appeal from a judgment of a district court setting aside the findings of the Industrial Commission and modifying a disability award made by the Commission to the claimant and plaintiff-appellee, Shirley Kay Booher.

In this appeal, it is no longer disputed by the School District nor by the Commission that the claimant was injured while driving a school bus, and that her injuries arose out of and were incurred during the course of her direct employment by the School District. Additionally, the record establishes that, prior to the date of the accident in which the claimant was injured, her father, Sim Noe, had entered into a written contract with the appellant School District providing for the transportation of school children. With respect to this contract, the Industrial Commission specifically found that, at the time the contract was entered into, it was contemplated by the parties to the contract that the vehicle which would be used for transporting school children would be driven by more than one driver "and be driven within a family unit." The Industrial Commission further found that it was contemplated by the parties that the claimant would be a driver of the school bus which was to be operated under the terms of the contract, and that the compensation which was to be paid under the terms of such contract was the amount of $300 per month. However, in view of testimony by the claimant that she received no monetary compensation when she drove the school bus, and because it was established that the $300 payment made under the contract was paid to the father, Sim Noe, the Commission found that the claimant received no compensation for her services. The Commission concluded from these facts that the rate of compensation for claimant's services was nothing and that, therefore, the claimant was entitled only to the minimum award allowable under the provisions of 1965 Perm. Supp., C.R.S. 1963, 81-12-2.

Upon review, the district court held that applicable law did not support the Commission's entry of a minimum award in favor of the claimant. It was the determination of the district court that the claimant's award should have been based on compensation at the rate of $300 per month, or, as reflected in terms of an average weekly wage, the amount of $69.22 per week. These determinations of the district court were correct.

[1] At the outset, we reject the appellant's contention that the district court, in reaching its conclusion, disregarded the findings of fact made by the Commission and substituted its own findings of fact in lieu thereof. This case represents a situation where a reviewing court, acting upon the factual findings of the Commission itself, determined that the Commission had incorrectly applied the law to such factual findings. This was a proper and legitimate function by the district court in its reviewing capacity. Meyer v. Lakewood Country Club, 122 Colo. 110, 220 P.2d 371.

The controlling provisions of the Workers' Compensation Act are found within C.R.S. 1963, 81-8-1(3)(a) and (b) and are as follows:

"(a) Average weekly wages for the purpose of computing benefits provided in this chapter, except as hereinafter provided, shall be calculated upon the monthly, weekly, daily, hourly, or other remuneration which the injured or killed employee was receiving at the time of the injury, and in the following manner:

"(b) Where the employee is being paid by the month for his services under a contract of hire, the weekly wage shall be determined by multiplying the monthly wage or salary at the time of the accident, by twelve and dividing by fifty-two."

Also bearing upon this question are the provisions of C.R.S. 1963, 81-8-1(2), providing in substance that whenever the term "wages" is used in the Act it shall be construed to mean the money rate at which the services rendered are recompensed under the contract of hire in force at the time of the accident.

[2] From the Commission's findings, it is obvious that the services which the claimant was performing at the time of her injury were to be recompensed at the rate of $300 per month. The Commission additionally found that such compensation was to be earned and to be payable as the result of services which it was anticipated would be furnished by a family group, of which the claimant was a member. It is immaterial that such compensation was paid to the father as the primary member of that unit. The case of Lyttle v. State Compensation Insurance Fund, 137 Colo. 212, 322 P.2d 1049, cited by the appellants, is not in point here since in that case the services which were being performed carried a zero rate of compensation.

Considering the Commission's findings and the applicable statutes, the conclusion of law reached by the trial court was correct.

Judgment is affirmed.

JUDGE COYTE and JUDGE PIERCE concur.


Summaries of

Booher v. Las Animas Sch. R-88

Colorado Court of Appeals. Division I
Nov 23, 1971
491 P.2d 104 (Colo. App. 1971)
Case details for

Booher v. Las Animas Sch. R-88

Case Details

Full title:Shirley Kay Booher v. Las Animas County School District R-88, State…

Court:Colorado Court of Appeals. Division I

Date published: Nov 23, 1971

Citations

491 P.2d 104 (Colo. App. 1971)
491 P.2d 104