Opinion
As Modified on Denial of Rehearing April 2, 1974. Not
Page 122
Evelyn Gamble, pro se.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent Industrial Commission of the State of Colorado.
ENOCH, Judge.
Evelyn Gamble, claimant, seeks review of an order of the Industrial Commission dismissing her petition to reopen a claim for benefits under the Colorado Occupational Disease Disability Act, C.R.S.1963, 81--18--1 et seq., as amended. We reverse.
Claimant's initial claim for compensation was filed in August 1971. It alleged that as a result of her work as food manager for Montview Presbyterian Church, claimant gradually developed acute pains in her shoulders, arms and feet. After a hearing, the referee found that claimant was suffering from tenosynovitis, a compensable occupational disease, and awarded total temporary disability benefits for 11 1/2 weeks. This order was not appealed.
In May 1972, claimant filed a petition to reopen her claim, alleging that her condition had become worse. A report from her physician to that effect was attached to the petition. At the employer's request, claimant was examined by another physician, who reported in a letter that in his opinion she had 'no disability.'
The referee held a hearing on the petition to reopen. Claimant, the sole witness, testified that pains in her arms and shoulders had increased and that she was unable to resume work as a cateress. At the conclusion of the hearing there was discussion between the referee and counsel about scheduling a date for taking medical testimony, but no date was set. The referee took under advisement a question of law raised by the parties as to whether or not the statute permitted reopening of occupational disease claims. The doctors were never called to testify.
Subsequently, it was determined by the referee that the statute permits the reopening of a claim under the occupational disease section of the Act. In the petition for review no issue was raised as to this ruling. A supplemental order was entered denying the insurance carrier's motion to strike the matter from the docket and at the same time dismissing the petition to reopen, based on medical findings of fact that:
'Claimant's disablement on and subsequent to Jan. 5, 1972, is not the result of tenosynovitis of the right shoulder and is, further, not the result of an occupational disease.'
The supplemental order was affirmed by the Commission.
The Commission argues that the referee's decision is supported by the report of the employer's physician and must therefore be upheld. However, that physician expressed the opinion that claimant suffered No disability at the time he examined her. The referee, on the other hand, found that claimant did suffer disability after January 1972, but that the disablement was not the result of a compensable occupational disease. There is no evidence in the record to support this finding. Where the Commission's order is not supported by the evidence, it must be reversed. See 1969 Perm.Supp., C.R.S.1963, 81--14--12.
Furthermore, Rule XX 9(b) of the Industrial Commission Rules of Procedure governing workmen's compensation cases provides:
'. . . If either party believes that the report of any physician so filed is adverse to his case it may elect to secure the attendance of the physician at a hearing and to cross-examine him upon his report.'
In this case counsel for claimant requested that a date be set for the taking of medical testimony. After discussion, however, counsel and the referee agreed to postpone making the election to cross-examine medical witnesses until the referee ruled whether claimant was permitted by statute to reopen her claim. By deciding all issues in his initial opinion, the referee denied the parties' right to cross-examine medical witnesses.
The order is set aside and the cause remanded with directions to conduct a hearing for cross-examination of medical witnesses as requested by claimant and for such further proceedings as may be thereafter appropriate.
PIERCE and RULAND, JJ., concur.