242 P. 988 | Colo. | 1926
THE district court affirmed the commission's second award which increased the allowance from 139 to 208 weeks. We think the commission and the court were right. The material facts are that on March 5, 1923, Duran, by accident in the course of his employment, lost his arm two inches above the elbow; the commission awarded compensation for 208 weeks, and plaintiffs in error claim it should have been 139 weeks.
Compiled Laws, § 4447, which governs the case, specifies compensation for "loss of one arm between elbow and shoulder, 208 weeks; loss of forearm between wrist and elbow, 139 weeks * * *. (c) Whenever amputation is made between any two joints mentioned in this schedule * * * the resulting loss shall be estimated as if the amputation had been made at the joint nearest thereto." It is plain that this would mean that Duran ought to have the compensation specified for loss at the elbow, but there is no specification for compensation for loss at the elbow. The insurer says that the compensation should be 139 weeks, but that is to say that "at the elbow" means "below the elbow," to support which there is no ground. Neither is there ground to say that "at the elbow" means "above the elbow." The reasonable conclusion is that paragraph (c) has no reference to the specifications for loss of the arm, which leaves 208 weeks for loss between shoulder and elbow as the correct award. What compensation should be awarded for a loss actually at the elbow is a question not now before us.
The commission first awarded 139 weeks, which on its own motion, under C. L. § 4484 (section 110 of the act), it afterwards changed to 208. Plaintiff in error says it had no jurisdiction to make this change,
The original award was November 9, 1923, 139 weeks. January 17, 1924, Durant filed a petition for review which was denied as too late. March 14, 1924, on its own motion, the commission ordered a further hearing on the ground of errors, inter alia, that it appeared "that the amputation of said arm was between the elbow and shoulder, for which *503 the specific schedule provides 208 weeks disability," the further hearing was had, and, May 29, 1925, the award was entered for 208 weeks, with no change in facts. It is claimed that since the facts were the same the award should have been the same, but the error was of law, not fact, and, as we have shown above, the correction was right.
Between the date of the order for further hearing, however, and the new award, the claimant applied for and was granted a lump sum settlement which was paid, and it is claimed that this was such a final disposition as to deprive the commission of power to act further. It is also claimed that the original award was a final judgment which exhausted the powers of the commission unless changed conditions should appear. The claim is unsound. London Guar.Co. v. Ind. Com.,
There can be no doubt that the error of law, i. e., 139 for 208 weeks, might, under this section, be corrected at any time. The statute is, in this respect, too plain for construction. If this is inexpedient or its consequences at variance with our ingrained ideas of proper judicature, it is a matter for the consideration of the general assembly. LondonGuar. etc. Co. v. Industrial Com.,
Judgment affirmed.
MR. CHIEF JUSTICE ALLEN and MR. JUSTICE CAMPBELL concur.
