Opinion
July 17, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 656
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent Industrial Commission of Colo.
Hoyman, Maguire, Davies & Nanney, P.C., John Hoyman, Denver, for petitioner.
Alious Rockett, Feay Burton Smith, Jr., Robert S. Ferguson, Denver, for respondents Idarado Mining Co. and State Compensation Ins. Fund.
SILVERSTEIN, Chief Judge.
Claimant, Delbert C. Stewart, sought workmen's compensation for injuries to his right leg allegedly sustained in an accident on November 9, 1971, which occurred in the course of his employment with respondent, Idarado Mining Co. Following a hearing, a referee found that claimant had failed to establish that he sustained an accident arising out of and in the course of his employment and denied compensation. The Industrial Commission affirmed and adopted the referee's order. Claimant seeks review of the final order on the grounds that, (1) the order is contrary to the evidence and constitutes an abuse of discretion, and, (2) that the Commission is required, as a matter of law, to resolve all conflicts in the evidence in favor of the claimant. We affirm the order of the Commission.
Claimant's evidence disclosed that he was bumped by another employee while he was coming out of his employer's mine at the end of his work shift, and hit his shoulder against a wall. He sent a note to his employer stating he would not be at work the following day because he was going to Montrose (from Telluride) to meet his sister. Instead he went to Grand Junction and saw his doctor because of pain in his right leg. He was sent to the hospital by the doctor and it later developed that he had a hairline fracture.
However the record further discloses that although claimant was fully cognizant of accident reporting procedures and requirements, and although claimant and his wife had several conversations after the alleged accident with claimant's supervisor and the mine's safety director, neither claimant nor his wife reported any accident to his employer, nor advised the employer of any claim against it until he filed his claim with the Commission. When reporting his hospitalization to claimant's supervisor his wife, in response to the question, 'What's wrong?' replied only that she couldn't say because she didn't know. His doctor testified that claimant's leg was debilitated as a result of a previous injury and that the fracture could result from any slight trauma.
The evidence as to the cause of the injury was conflicting and, based thereon, the Commission found that claimant had failed to establish that his injury was sustained while in the course of his employment. On appeal, our function is to determine if there is evidence in the record to support the findings of the Commission. Gatewood v. Russell, 29 Colo.App. 11, 478 P.2d 679. Here the findings are supported by competent evidence and are therefore conclusive on review. Curtis v. Industrial Commission, 167 Colo. 462, 447 P.2d 1012; Industrial Commission v. Allen, 28 Colo.App. 546, 478 P.2d 702.
Claimant's second ground for review is wholly without merit. In all cases of conflicting evidence, the Commission's sole function is to resolve the conflict by ascertaining the true evidentiary facts and applying the statute thereto. See Breit v. Industrial Commission, 160 Colo. 205, 415 P.2d 858; Regal Coal Co. v. Jackvich, 105 Colo. 479, 99 P.2d 196.
Order affirmed.
COYTE and PIERCE, JJ., concur.