Opinion
June 5, 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This case has been marked 'not for publication' by the court.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 respondents Industrial Commission of the State of Colo. and James M. Shaffer.
Criswell & Patterson, John A. Criswell, Gary Patterson, Englewood, for petitioner.
Dosh, DeMoulin, Anderson & Campbell, J. Kent Miller, Denver, for respondents Garrett Freightlines, Inc., and Truck Inc. Exchange.
DWYER, Judge.
This is a workmen's compensation claim brought by Bobby W. Richmond, as claimant, for compensation for injuries sustained in an industrial accident. Claimant alleged that on February 1, 1972, he sustained an injury to his back resulting in permanent disability in an accident arising out of and in the course of his employment by Garrett Freightlines, Inc. The employer and its insurer, Truck Insurance Exchange, contested liability. A referee of the Division of Labor, after a hearing, found that claimant sustained a compensable injury, but that claimant had no permanent partial disability fairly attributable to his acident. On review, the Industrial Commission approved, adopted, and affirmed the referee's order. Claimant filed this petition for review seeking reversal of that portion of the order denying compensation for permanent partial disability.
Claimant asserts that the referee's order was entered before he had an opportunity to present his evidence on the question of permanent partial disability. The record supports claimant's contention. Hearing on the claim was set for June 5, 1972. The notice of this hearing specifically stated that medical testimony would be received at a later date. At the hearing, the only evidence submitted was the testimony of claimant concerning the accident and his injuries. The record reflects that all parties understood that a hearing would be set at a later date for presentation of medical testimony. No such hearing was ever held. On July 19, 1972, claimant, at the request of the referee, submitted reports of two physicians. Neither of the reports contained any statements concerning permanent partial disability. In submitting the reports, claimant stated that he was not relying on the reports to establish his claim for permanent partial disability, but that he desired that this question be reserved for determination at a later date. The order complained of was issued on August 3, 1972, without affording claimant an opportunity portunity to present medical evidence concerning permanent partial disability.
In Hosey v. Industrial Commission, 155 Colo. 585, 396 P.2d 228, our Supreme Court held that an award of a referee which was later upheld by the Industrial Commission could not be sustained because the award was entered before the employer had completed the presentation of his case. Claimant, in the present case, is entitled to an opportunity to present his evidence in support of his claim of permanent partial disability and to a full hearing precedent to the issuance of an order determining his rights.
Accordingly, the order of the Commission is set aside and the cause is remanded for further proceedings consistent with this opinion.
ENOCH and SMITH, JJ., concur.