Opinion
Margaret Bates Ellison, Richard T. Goold, Denver, for petitioner.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent, Industrial Commission of Colorado.
Alious Rockett, Francis L. Bury, Feay Burton Smith, Jr., Harold Clark Thompson, Denver, for respondents, Stenger Const. Co., a Colorado corporation, and State Compensation Insurance Fund.
ENOCH, Judge.
This is a workmen's compensation claim. Petitioner was a claimant before the Division of Labor for compensation for an injury sustained in an accident arising out of the course of his employment. Respondents were the respondents before the Division of Labor. Hearing was held before a referee who ruled adversely to petitioner. The referee's order was upheld on petition for review by the Industrial Commission.
Petitioner's injury arose out of an accident in which the truck in which he was riding was struck from the rear. The driver of the truck was respondent, Robert H. Collins. The truck was the property of respondent, Stenger Construction Company, a Colorado corporation, which was insured at the time of the accident as to workmen's compensation liability by the respondent, State Compensation Insurance Fund.
Respondent, Frank Stenger, owned all stock in, managed, and did business through, the Stenger Construction Company. Respondents, Stenger, Deterts, and Collins had formed a joint venture which performed substantially similar services to those performed by Stenger Construction Company. Petitioner was hired by Stenger and Deterts as a laborer to work on a job being performed by the joint venture.
Petitioner's claim on appeal to this court is based on the assertion that it was Stenger Construction Company and not Frank Stenger, the individual, who was a party to the joint venture. Assuming this to be the case, it is the petitioner's position that the holding in Industrial Commission of Colorado v. Lopez, 150 Colo. 87, 371 P.2d 269, would extend the workmen's compensation coverage of Stenger Construction Company to the joint venture. If the petitioner's theory were adopted by this court, it would be necessary to set aside the referee's clear finding that Frank Stenger, as an individual, was engaged in the joint venture and not Stenger Construction Company. The petitioner asserts that the referee's finding is contrary to and unsupported by the evidence presented at the hearing and that therefore, this court has the power to set aside such finding.
It is a fundamental principle supported by a myriad of Colorado cases that since the Industrial Commission has been entrusted with the power to find the facts, its findings must be affirmed if supported by any competent evidence. Some recent cases enunciating this principle are: Evans v. City and County of Denver, 165 Colo. 311, 438 P.2d 698; United Utilities and Specialities Corp. v. Industrial Commission, 160 Colo. 518, 418 P.2d 896; Sharmar Nursing Home v. Industrial Commission, 160 Colo. 197, 416 P.2d 161. An adjunct to the foregoing principle is the proposition that the reviewing court will not weigh the evidence nor substitute its judgment for that of the Commission even when it is convinced that the weight or preponderance of the evidence is contrary to the Commission's findings. See, 2 A. Larson, The Law of Workmen's Compensation, ss 80.10, 80.20.
Upon reading the transcript of the hearing, we conclude that the testimony pertaining to the question presented in this appeal was often contradictory and less than frank. However, we cannot conclude that the referee's finding was based completely on speculation and conjecture, although the evidentiary basis upon which the referee based his order was indeed weak and falls far short of being exemplary.
The order is affirmed.
DWYER and PIERCE, JJ., concur.