Opinion
Rehearing Denied May 7, 1974.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondents James M. Schaffer, Executive Director, Dept. of Labor and Employment, State of Colo. and the Industrial Commission of Colo.
Page 144
Hemminger, McKendree, Vamos & Elliott, P.C., James E. Elliott, Jr., Denver, for petitioners.
Lennart T. Erickson, Denver, for respondent Dorothy A. Humes.
RULAND, Judge.
Petitioners seek review of an Industrial Commission award granting claimant benefits for permanent and total disability. We affirm the award.
Claimant filed a claim for compensation in May of 1967. Four evidentiary hearings were held between August of 1967 and June of 1970, and thereafter the referee denied the claim. The order denying the claim was approved by the Commission, and claimant appealed to this court. We set aside the order and remanded the case to the Commission to make specific evidentiary findings on the ultimate factual issues of whether claimant was injured in an accident arising out of the course of her employment, and if so, whether her physical disability, if any, was caused by that accident. See Humes v. Director of Division of Labor, Colo.App., 494 P.2d 1304 (not selected for official publication).
The referee thereafter corresponded with counsel for the parties, inquiring:
'Whether you desire any further hearings in this matter or whether the file should be returned to the (Commission) for further procedure pursuant to the remand . . ..'
Petitioners answered that further hearings were not authorized by the remand. Thereafter the Commission determined that claimant suffered a compensable accident and entered its award.
In this review, petitioners contend: (1) The Commission erred in failing to provide them an opportunity to present evidence concerning the extent of claimant's disability; and (2) the Commission failed to make findings of evidentiary and ultimate facts sufficient to support the award. We disagree.
Prior to entry of the original order denying claimant's claim, the record verifies that petitioners considered the issues to be: (1) Whether claimant suffered a compensable accident and, if so: (2) whether her condition stemmed from that accident. However, the referee did not limit the evidence to those issues and did not indicate that petitioners would be given an additional opportunity to present evidence on the degree of disability if the above issues were resolved favorably to claimant. Notwithstanding this state of the record, the referee afforded petitioners an opportunity to request further hearings, subsequent to the remand by this court. Although petitioners interpreted the letter from the referee as inquiring whether additional hearings were required on the issues enumerated above, we do not interpret the letter as containing such a limitation. Having afforded petitioners the opportunity for further hearings, and the same having been declined, it was within the authority of the Commission to enter a final award.
On the issue of disability, the Commission found 'from the testimony of the medical witnesses' that claimant was permanently and totally disabled. The Commission is vested with the widest possible discretion in determining the extent of an injured worker's disability. Byouk v. Industrial Commission, 106 Colo. 430, 105 P.2d 1087. Evidence from five physicians was presented in this case.
Although the evidence was in conflict, the essential question was whether claimant was totally disabled and thus precluded from any type of regular employment, or whether claimant might eventually be able to perform certain types of work. There is competent evidence from two of the medical witnesses which supports the Commission's finding. Under the circumstances of this case, we conclude that the Commission's findings are sufficiently specific to support the order entered and the same are binding upon us on review. See New Jersey Zinc Co. v. Industrial Commission, 165 Colo. 482, 440 P.2d 284. The Commission's order is therefore affirmed.
PIERCE and SMITH, JJ., concur.