Opinion
April 2, 1974.
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This case has been marked 'not for publication' by the court.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., Dnever, for respondent Industrial Commission of State of Colo.
Hoyman, Maguire, Davies & Nanney, P.C., John Hoyman, Denver, for petitioner.
James A. May, R. S. Ferguson, Francis L. Bury, Denver, for respondents Dolores County and Div. of State Compensation Ins. Fund.
RULAND, Judge.
This is a review of an order of the Industrial Commission denying claimant benefits under the Workmen's Compensation Act. We affirm.
The record discloses that claimant was employed by Dolores County. While moving a 200 pound tire on January 16, 1970, the tire fell over, knocking claimant to the ground. Claimant testified that he then felt a hot surge of pain in his back.
Claimant consulted a physician on January 19 and was diagnosed as having arthritis. Apparently because the pain continued, claimant terminated his employment on February 28 and finally consulted an orthopedic surgeon on April 15, who diagnosed the problem as a herniated disc. Claimant did not respond to conservative treatment, and surgery was performed.
Claimant filed a claim for compensation in May of 1970. After taking evidence, the referee entered his original order denying claimant benefits. Claimant petitioned for review, and the referee reopened the case to take additional testimony.
Following this testimony, the referee entered a supplemental order and findings of fact. The referee concluded that claimant failed to establish that he suffered accidental injury arising out of his employment because, Inter alia: Claimant advised his supervisor immediately following the incident with the tire that he was not hurt; claimant did not report any accidental injury to his employer until May of 1970; claimant continued his employment from January 16 until February 28, 1970, without complaints of any injury; claimant left his employment on February 28 without reference to the alleged accidental injury; claimant did not report to the physician who initially treated him that his back was injured in an accident; and claimant failed initially to give the orthopedic surgeon any indication that the claimant's condition resulted from this accident.
Claimant's testimony together with evidence from two witnesses who testified that claimant had complained to them in February of 1970 of a back injury resulting from the tire incident on January 16, 1970, and the written statement of a third witness to the same effect failed to convince the referee that claimant sustained any injury as a result of the tire incident.
The Industrial Commission adopted and approved the referee's supplemental order and findings. In this review, claimant contends that the evidence clearly establishes that his back condition resulted from an accidental injury while in the course of his employment and that, therefore, the Commission abused its discretion in failing to award him benefits. We disagree.
Where there is evidence, whether direct or by reasonable inference, which will support findings of the Commission, such findings are binding on review even though the evidence viewed in its most favorable light might have supported an award for the claimant. White v. Industrial Commission, 104 Colo. 372, 90 P.2d 960; Industrial Commission v. Allen, 28 Colo.App. 546, 478 P.2d 702. Therefore, the Commission's findings and order are affirmed.
PIERCE and SMITH, JJ., concur.