Summary
holding the Industrial Commission and referee failed to make findings of fact in determining the claimant was entitled to 7 1/2% permanent partial disability benefits in worker's compensation
Summary of this case from Jones v. Dist. of Columbia Dep't of Emp't Servs.Opinion
Aug. 14, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 735
Alious Rockett, Francis L. Bury, Feay Burton Smith, Jr., James A. May, R. S. Ferguson, Denvr, for respondents City and County of Denver and State Compensation Ins. Fund.
Benjamin R. Loye, P.C., Wheatridge, for petitioner.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent Industrial Commission of Colorado.
ENOCH, Judge.
Pero R. Spikner, claimant-petitioner, has filed a petition to review a final order of the Industrial Commission. Although successful in his Workmen's Compensation claim to the extent that he was awarded a 7 1/2% Permanent partial disability, Spikner alleges various points of error and seeks alternative relief.
Spikner was employed as a laborer for the City and County of Denver. There is no dispute among the parties as to the fact that Spikner's accidental injury on January 12, 1970, arose out of and was in the course of his employment. A final hearing was held to terminate compensation for temporary total disability, to determine the degree of permanent disability, and to determine the date compensation therefor should be commenced.
Apikner alleges, Inter alia, that the referee failed to properly consider the evidence. It is impossible for this court to determine whether or not this and other allegations have merit since the referee failed to make adequate findings of fact as required by statute.
Following every hearing before a Workmen's Compensation referee, the referee must enter a summary order which allows or denies the claim. At the entry of such order, it is not required that specific findings of fact be made. 1969 Perm.Supp., C.R.S.1963, 81--14--4. The referee made such a summary order on November 8, 1971, in regard to Spikner's claim. Had Spikner been satisfied with the award, and had the claim been processed no further, the procedures followed would have been sufficient. However, when there is a petition for review, as there was in this case, and the referee has not already made findings of fact in his order or by a supplemental order, he must do so and must include in that order all evidentiary and ultimate facts necessary to support the award. 1971 Perm.Supp., C.R.S.1963, 81--14--6(1). This was not done by the referee nor by the Commission which summarily approved the referee's award. Failure to make specific findings necessitates the setting aside of the order and a remand to the Commission for fulfillment of its fact-finding function. Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761; Tague v. Coors Procelain Co., 29 Colo.App. 226, 481 P.2d 424.
Spikner also alleges that the referee erred in the determination of the age on which any award for permanent partial disability is to be based. Although Spikner was 51 years old at the time of the injury, the referee found that Spikner had reached maximum improvement on December 21, 1970, a date after his 52nd birthday. The Workmen's Compensation Act in 1969 Perm.Supp., C.R.S.1963, 81--12--9(1)(a), provides in part that:
'(t)he injured employee shall be deemed to be permanently disabled from the time he is so declared by the (referee) and from said time shall be entitled to compensation for permanent partial disability in addition to any compensation theretofore allowed.'
Under this statute the date when benefits for temporary disability stop and benefits for permanent disability begin is the controlling date. Since Spikner had attained the age of 52 at the time when he was declared to be permanently disabled, the referee was correct in using that age for computation of the award. Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638.
The order of the Commission is set aside and the cause remanded for further proceedings consistent herewith.
COYTE and SMITH, JJ., concur.