Opinion
Sept. 11, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1139
Hemminger, McKendree, Vamos & Elliott, P.C., Richard D. Greengard, Denver, for respondents Boyles Drilling Co. and The Travelers Ins. Co.
Ashen & Fogel, George T. Ashen, Denver, for petitioner.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for respondent The Industrial Commission of the State of Colo.
PIERCE, Judge.
This is a review from a final order of the Industrial Commission denying the claimant's petition to reopen his workmen's compensation claim.
It is not disputed that the Director of the Division of Labor has been granted broad discretion by the statute regarding a decision as to whether or not to reopen a claim, and that, upon proper petition by a claimant, the question of reopening is permissive with the Director, rather than mandatory. 1969 Perm.Supp., C.R.S.1963, 81--14--19; Industrial Commission v. Cutshall, 164 Colo. 240, 433 P.2d 765. The burden is upon the claimant to establish that he has suffered a change in condition or that there was an error or mistake in the initial award. Maryland Casualty Co. v. Kravig, 153 Colo. 282, 385 P.2d 669. The refusal of the Director to reopen and review a case cannot be set aside by the courts, except in the case of fraud or clear abuse of discretion. Kokel v. Industrial Commission, 111 Colo. 188, 139 P.2d 259.
The sole issue presented in this case is: Was there sufficient evidence in the record to justify the Director's decision? We conclude that there was.
The paramount question presented to the Director was whether or not the physical complaints allegedly being encountered by the claimant, and which might warrant a reopening of the case, resulted from the industrial accident which occasioned his initial award. The evidence was in conflict and placed the Director in the position of having to choose between the testimony of two physicians. One of these physicians unequivocally testified that it was medically impossible for the medical condition complained of at the time of the petition to be related to the injury which was the subject of the original claim.
The credibility of the witnesses and the weight to be accorded to their testimony are matters within the province of the trier of fact, Gates Rubber Co. v. Tice, 124 Colo. 595, 239 P.2d 611, and, under the facts before us, we would not be justified in disturbing the Commission's decision.
Order affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.