Opinion
No. 70-481
Decided January 12, 1971.
From Industrial Commission's approval and adoption of supplemental order denying claimant benefits for temporary total disability during period when surgery was pending and from award of permanent partial disability on a schedule basis, claimant appealed.
Affirmed in Part, Reversed in Part.
1. WORKERS' COMPENSATION — No Showing — Refusal of Surgery — No Unsanitary, Injurious Practice — Relief from Compensation — Pending Surgery — Reversal. Where there was no showing of refusal by workmen's compensation claimant to submit to surgery nor a showing that claimant persisted in any unsanitary or injurious practice which tended to imperil or retard his recovery, held, Industrial Commission's order relieving respondents from payment of compensation for period during which surgery was pending is reversed.
2. Statute — Industrial Commission — Discretion — Permanent Partial Disability — Scheduled Disability — Or — Working Unit. Workmen's compensation statute confers a discretionary power upon the Industrial Commission to rate petitioner's permanent partial disability under either the scheduled disability provisions or the working unit provisions of the statute.
Appeal from the Order and Award of The Industrial Commission of Colorado,
L. F. Butler, for petitioner.
Hemminger, McKendree, Vamos Elliott, for respondents F. H. Linneman Construction Company and The Travelers Insurance Company.
Duke W. Dunbar, Attorney General, John P. Moore, Deputy, Peter L. Dye, Assistant, for respondent Industrial Commission of Colorado.
This is a workmen's compensation case. On March 5, 1964, the petitioner, Manuel Padillo, slipped and fell off a flat-bed truck landing on and injuring his left shoulder and arm. Liability was admitted by the employer and its insurer. Petitioner received compensation for temporary disability and was awarded compensation for permanent partial disability based upon 15% loss of the use of his left arm at the shoulder.
On June 27, 1967, Padillo filed a petition to reopen his claim. The referee found that the petitioner's condition had worsened and ordered the case reopened for further medical treatment and ordered respondents to resume payment of compensation to the petitioner for temporary total disability beginning June 27, 1967. On January 9, 1968, the treating physician in a written report recommended surgery and reported that petitioner was willing to undergo the surgical procedure. The surgery was performed June 5, 1968.
Thereafter, a special admission was filed with the commission by the respondents admitting permanent disability of 15% loss of the use of petitioner's left arm at the shoulder. This was rejected by the petitioner and pursuant to his request, a hearing was held on April 25, 1969.
In the referee's order entered after the hearing the following appeared:
"The Referee, having reviewed the entire file and the testimony, finds that the claimant reached maximum improvement on February 26, 1969, that there is no other involvement related to the accident except that of the left upper extremity, and that his permanent partial disability is 40 percent loss of use of the left upper extremity as measured at the shoulder.
"The Referee further finds that the respondents tendered surgery to the claimant on January 10, 1968, and for personal reasons the claimant was not operated until June 5, 1968, and that respondents should be relieved of liability for temporary total disability during that period."
The Commission orally remanded the case for further findings. A supplemental order was approved and adopted by the Commission and petitioner appeals.
Petitioner's first argument is that the Commission erred in relieving respondents of liability for temporary total disability from January 10, 1968, until June 5, 1968. The referee's action was taken pursuant to C.R.S. 1963, 81-12-11(3), which provides:
"* * * If any employee shall persist in any unsanitary or injurious practice which tends to imperil or retard his recovery or shall refuse to submit to such medical or surgical treatment as is reasonably essential to promote his recovery, the commission, in its discretion, may reduce or suspend the compensation of any such injured employee." In applying this statute the referee concluded that the petitioner "retarded his recovery and prolonged his disability by refraining from undergoing the surgery. * * *" However, the Commission did not find and there is no evidence to support a refusal by petitioner to submit to surgery. Although it appears the surgery recommended on January 9, 1968, was not performed until June 5, 1968, it does not appear that either the doctor or the Commission scheduled the surgery for an earlier date. On the contrary it appears that when the respondents inquired of the doctor on April 23, 1968, concerning the status of the case the doctor replied that:
"The patient was to notify this office as soon as he selected the date for his surgery. We felt that being an elective procedure, the patient should have a choice in selecting a date."
On May 20, 1968, petitioner informed the commission that he had not heard from his lawyer or the insurance company, but that he wanted the operation. It was thereafter scheduled for June 5, 1968, and performed on that date.
At the hearing of April 25, 1969, the petitioner was asked why he delayed the surgery. He stated that he did not want to go through with the operation unless he really had to and that he thought he would improve by waiting. He stated further that he went to California for two weeks "to get some sunshine" hoping to improve, but that his condition worsened.
[1] The evidence does not support the suspension of compensation under C.R.S. 1963, 81-12-11(3). There was no showing of a refusal to submit to surgery nor was it shown that petitioner persisted in any unsanitary or injurious practice which tended to imperil or retard his recovery. The Commission's order is accordingly reversed insofar as it relieved respondents from payment of compensation from January 10, 1968, until June 5, 1968.
Petitioner's second claim is that his permanent partial disability should be rated as a working unit under C.R.S. 1963, 81-12-9, rather than as a scheduled disability under C.R.S. 1963, 81-12-4, as was done by the Commission.
C.R.S. 1963, 81-12-4, provides:
"(1) (a) In case an injury results in a loss set forth in the following schedule, the injured employee, in addition to compensation to be paid for temporary disability, shall receive compensation for the period as specified:
(b) The loss of an arm at the shoulder 208 weeks.
* * * *
(7) Where an injury causes the loss of use or partial loss of use of any member specified in the foregoing schedule, the commission may determine the disability suffered and the amount of compensation to be awarded, by awarding compensation which shall bear such relation to the amount stated in the above schedule for the loss of a member as the disabilities bear to the loss produced by the injuries named in the schedule and such amount shall be in addition to compensation for temporary disability, or the commission may award compensation under the permanent partial disability section of this statute as the commission in its discretion may determine from the particular facts in each case."
[2] The statute confers a discretionary power upon the Commission to rate petitioner's permanent partial disability under either statute. See Cosmopolitan Western Hotel v. Henry, 172 Colo. 279, 472 P.2d 134, and Industrial Commission v. Seastone, 167 Colo. 571, 448 P.2d 963.
The Commission found that the petitioner sustained no injury other than the loss of use of his left arm at the shoulder and determined that under the circumstances petitioner should be compensated under C.R.S. 1963, 81-12-4. The Commission did not abuse its discretion in making this determination.
Accordingly, the Commission's award of permanent partial disability is affirmed; and the Commission's order denying petitioner temporary total disability benefits during the period from January 10, 1968, to June 5, 1968, is reversed, and the cause is remanded to the Commission with directions to enter an order in conformity with this opinion.
JUDGE COYTE and JUDGE DUFFORD concur.