Employers Mutual Insurance v. Jacob

Mr. Justice Bakke delivered the opinion of the court. Action under the Workmen’s Compensation Act. Judgment below affirmed award of compensation to claimant by the Industrial Commission for permanent partial disability of ten per cent, and it is to review that judgment that the matter is before us. Claimant was injured November 1, 1918, while working in a mine, when some rock fell against his right leg (original claim recited left leg, but doctor’s testimony indicates it was the right one—immaterial in any event), and broke both bones just above the ankle. A hearing was had on his claim January 7, 1919, and he was awarded $88 for temporary total disability. He received this award by check from the company, which he endorsed under the usual “payment in full” clause, and the correspondence of the insurance carrier (plaintiff in error here) with the commission indicates this, although the formal receipt which claimant was said to have signed was destroyed by fire in the office of insurance carrier several years ago. Claimant says he never signed any separate receipt. From 1919 to 1937, claimant, who was not represented by counsel at the first hearing, did nothing further about the injury, except, as he says, “I did call at the office of the insurance company at the time, several times, and stated that I was unable to go to work. I did, but there was nothing done. ’ ’ This statement is not denied by the insurance carrier. The Industrial Commission, upon its own motion, reopened the case under authority conferred by section 110 of the Compensation Act (’35 C. S. A., vol. 3, [517] c. 97, §389), -which reads as follows: “Upon its own motion on the ground of error, mistake or a change in conditions, the commission may at any time after notice of hearing to the parties interested, review any award and on such review, may make an award ending, diminishing, maintaining or increasing the compensation previously awarded, subject to the maximum and minimum provided in this article and shall state its conclusions of facts and rulings of law, and shall immediately send to the parties a copy of the award. No such review shall affect such award as regards any moneys already paid. ’ ’ We have held that the defense of laches is not available where the award is made under this provision. Industrial Commission v. Carpenter, 102 Colo. 22, 76 P. (2d) 418. And that “payment in full” does not bar a review (Employers Mutual Ins. Co. v. Industrial Commission, 83 Colo. 315, 265 Pac. 99); but we also have held that an amicable, bona fide settlement, approved by the commission, is binding. Independence Coffee & S. Co. v. Taylor, 97 Colo. 242, 48 P. (2d) 798. Counsel for the insurance carrier contends that the finding of temporary disability only, and awarding compensation therefor by the commission in 1919, “must be deemed” to be a finding* of no permanent disability (Flick v. Industrial Commission, 78 Colo. 117, 239 Pac. 1022), and, hence, there is no “error, mistake or a change in conditions” that constitute a ground for reopening the case. Assuming that to be the rule of that case, it is justly tempered with an exception that the commission may, in its sound discretion (determining as a fact that there was error, mistake, or changed conditions), reopen a case whenever there has been a natural development of an industrial injury, uninfluenced by an independent, intervening cause. Post Printing & Pub. Co. v. Erickson, 94 Colo. 382, 30 P. (2d) 327. The natural development of the injury here, as disclosed by the record, is the swelling of the ankle caused by the incomplete mending* of the break of one of the [518] bones, which, with its attendant weakness, causes exhaustion in an unreasonably short time. It is not contended that there was any independent, intervening cause that resulted in claimant’s present condition, other than the lapse of time. Claimant’s reason for the long delay was, that he was unaware of his right to have a further hearing. While ignorance is no excuse, in fairness to him, it should be said that he was not represented by counsel at the first hearing. The charge of concealment against him, we feel, is not well founded. We prefer to believe that all parties acted honestly in the matter. There is little dispute in the medical testimony as to the condition of the leg in 1937, when the case was reopened, and we feel there is clearly sufficient competent testimony to support the commission’s award. There was a chronic enlargement, and the fractured internal malleolus had not completely united, which conditions, even though potentially existing at the time of the orginal hearing, were not considered by the commission in connection with any attempt to fix permanent partial disability. Whether we call it a mistake on the part of the commission or a change in conditions is immaterial, since either would justify the commission’s action in reopening the case. In any event, we have held that where the commission on its own motion has entered a supplemental award, it must be assumed, on review, that it believed it had made a mistake, and an award without a specific finding to that effect has been sustained. Clayton Coal Co. v. Zak, 94 Colo. 171, 29 P. (2d) 374; Century Indemnity Co. v. Klipfel, 99 Colo. 213, 61 P. (2d) 842. We are of the opinion that the facts and circumstances in the case at bar are sufficiently similar to those in London G. & A. Co. v. Sauer, 92 Colo. 565, 22 P. (2d) 624, to make that case controlling here. The case of Independence Coffee & S. Co. v. Taylor, supra, is distinguishable, because there the temporary total disability had terminated at the time claimant [519] signed the receipt, and the claim of his having- sustained any permanent disability was very questionable, both of which elements are lacking in the present case. Finally, we feel that whatever doubts may exist concerning the disposition of this case, should, in view of the circumstances, be resolved in favor of the judgment below. Me. Chiee Justice Bueke, Me. Justice Bouck and Me. Justice Holland dissent. Mr. Chief Justice Burke thinks the judgment should be reversed on ground of laches.