Opinion
Dec. 11, 1973.
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This case has been marked 'not for publication' by the court.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 respondent Industrial Commission of the State of Colorado.
Feldman & Homyak, Michael R. Homyak, Denver, for petitioner.
Zarlengo, Mott & Zarlengo, Albert E. Zarlengo, Jr., Denver, for respondents Samsonite Corp. and Liberty Mut. Ins. Co.
Page 1143
SILVERSTEIN, Chief Judge.
Petitioner, DeLois Hooker, sought workmen's compensation benefits for injuries to her right thumb sustained in 1968 in an admitted accident in the course of her employment with respondent, Samsonite Corporation. The claimant received compensation for temporary total disability until May 10, 1972. After a hearing on September 7, 1972 the referee awarded the claimant permanent partial disability of 60% Loss of use of the right thumb as measured at the proximal joint. The claimant seeks review of the final order of the Industrial Commission which approved, affirmed and adopted the referee's order. We affirm the order of the Commission.
The claimant asserts that the commission should have rated her injury as a working unit or as a loss of the hand rather than as a loss of thumb under the schedule. The applicable statute, C.R.S.1963, 81--12--4(7), gives the commission discretion to grant a percentage award under the schedule or to rate the claimant under the working unit disability section. The record contains adequate evidence to support the conclusion that the claimant's injury was confined to her thumb, and we find no abuse of the commission's discretion in making its award under the statutory schedule. Industrial Commission v. Seastone, 167 Colo. 571, 448 P.2d 963.
The claimant also asserts that the commission erred in failing to hold further hearings and receive additional evidence upon the filing of two medical reports subsequent to the referee's order. While 1971 Perm.Supp., C.R.S.1963, 81--14--6(2) does provide that the commission may hold further hearings and receive further evidence, such a decision rests within the sound discretion of the commission. Two hearings had already been held in this case, and the parties had filed numerous medical reports from five different physicians. We find no abuse of discretion by the commission in refusing to hold further hearings.
Finally, the petitioner contends that the evidence did not support the referee's findings that the injury was confined to the claimant's thumb and that claimant had attained maximum medical improvement on May 10, 1972. The medical evidence on these points is in conflict, and conflicting inferences can be drawn from the claimant's testimony. In such cases determination of the issue is primarily within the province of the commission. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638. In Tillman v. Capitol Hill Transfer & Storage Co., 165 Colo. 514, 440 P.2d 152, the Supreme Court, quoting from an earlier case, said, 'In determining the extent or degree of disability of an injured workman upon the facts of each case, it is axiomatic that the Industrial Commission is vested with the widest possible discretion with the exercise of which the courts will not interfere.' Here there was support in the record for the findings and conclusions of the referee and the commission. Therefore the Order is affirmed.
ENOCH and RULAND, JJ., concur.