Opinion
Dec. 26, 1973
Editorial Note:
This case has been marked 'not for publication' by the court.
R. S. Ferguson, Francis L. Bury, James A. May, Denver, for respondents Colo. Forest Products, Inc., and Division of State Compensation Ins. Fund.
Parga & Dyer, Guy B. Dyer, Jr., Cortez, 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 the State of Colo.
SMITH, Judge.
Claimant Ulibarri suffered a broken left arm in the course of his employment with respondent Colorado Forest Products, Inc. A special admission of liability was filed by the State Compensation Fund based on the report of claimant's attending surgeon that claimant had suffered 15 percent permanent disability to his left arm, as measured at the elbow. Seeking a disability rating on a working unit basis, claimant petitioned for a hearing on that issue. The referee adopted the Fund's special admission of liability, which order was ultimately approved by the Industrial Commission. We affirm the commission's order granting claimant compensation based on a functional disability rating.
Claimant maintains that the commission disregarded evidence supporting claimant's theory that he should be rated as a working unit pursuant to C.R.S.1963, 81--12--9. By statute, it is within the discretion of the commission to award benefits on the basis of functional disability under the schedule provided in C.R.S.1963, 81--12--4, or to award compensation based on percentage of disability as a working unit under C.R.S.1963, 81--12--9, as amended. See 1969 Perm.Supp. C.R.S.1963, 81--12--4(7). We will not interfere with the exercise of that discretion unless there is a clear showing of abuse thereof. Industrial Commission v. Seastone, 167 Colo. 571, 448 P.2d 963.
Claimant's attending physician estimated 15 percent functional disability and concluded that the recovery made by claimant was excellent. This conclusion was reaffirmed when the physician refused to comply with claimant's request for a rerating on a working unit basis. Further, the evidence supports the commission's finding that the claimant had extensive use of his left arm and was better off than if he had lost his arm completely, in which case claimant would have been limited solely to the scheduled benefits under C.R.S.1963, 81--12--4. Although there was conflicting evidence regarding claimant's ability to continue working at his job, the resolution of that conflict is for the commission. Under these circumstances, we find no abuse of discretion. See Industrial Commission v. Seastone, Supra.
Order affirmed.
SILVERSTEIN, C.J., and RULAND, J., concur.