Opinion
Aug. 7, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondents James M. Shaffer, Director, Div. of Labor of State of Colo., and Industrial Commission of State of Colo.
James N. Travis, Colorado Springs, for petitioner.
James W. Kin, Colorado Springs, for respondent John Carlson.
RULAND, Judge.
Petitioner David T. Harris seeks this review of an order of the Industrial Commission awarding John Carlson (claimant) compensation for injuries sustained in a work related accident. We remand the case for additional findings pursuant to 1969 Perm.Supp., C.R.S.1963, 81--14--16.
Petitioner owns and operates a business for the purpose of cutting firewood for resale. Claimant was injured when a chain saw he was operating came in contact with his left ankle. During an evidentiary hearing before a referee, petitioner asserted two defenses: (1) That claimant was an independent contractor and thus not an employee covered by the Workmen's Compensation Act; and (2) that claimant willfully violated a safety rule adopted by petitioner when he failed to wear high-topped leather boots on the date of the accident, and that, therefore, any award of compensation to claimant should be reduced 50 percent pursuant to C.R.S.1963, 81--13--4(1)(c).
Following the hearing, the referee made detailed findings of fact determining that claimant was an employee of petitioner and entered an award. However, the referee failed to make any findings of fact relative to the alleged willful violation of a safety rule. Following entry of the referee's award, petitioner sought review before the Commission and in connection therewith pointed out that findings of fact had not been entered relative to the safety rule issue. The Commission entered its findings of fact and award and affirmed the referee's order with certain modifications not relevant here. However, the Commission made no findings relative to the safety rule issue. Petitioner filed a petition for review of the Commission's award and again complained about failure to resolve the safety rule issue. The Commission entered a supplemental award affirming its initial award, but again made no findings relative to the safety rule issue.
In this review, petitioner does not question the determination that claimant was an employee, but contends that the award to claimant must be reduced by this court because claimant had, on the date of the accident, willfully violated the safety rule adopted by petitioner. We agree that petitioner is entitled to a ruling on the safety rule issue; however, the resolution of this issue should not be made by this court.
In summary, petitioner testified as to the rule and claimed that the violation thereof was unexcused. The claimant testified that there was no such safety rule, and, that if there were, he had a sufficient excuse for not being in compliance and thus did not willfully violate the rule. The evidence being in conflict, the issue must be resolved by the Commission. See Alvin H. Watkins, Inc. v. Hamilton, 159 Colo. 257, 411 P.2d 15.
The order of the Commission is set aside and the cause remanded to the Commission with directions to make findings of fact whether the employer had a safety rule, and, if so, whether claimant willfully violated the rule, and such other findings as it deems appropriate, and to enter its award thereon.
SILVERSTEIN, C.J., and ENOCH, J., concur.