72 Colo. 377 | Colo. | 1922
delivered the opinion of the court.
This is a writ of error to the district court of the City
From the record it appears that the award was set aside because the commission did not determine, or did not state in its findings, the period of life expectancy of the claimant, and that there was not sufficient evidence produced upon which such expectancy could be based; the court being of the opinion that no lump sum award could be made, unless and until the commission had determined, upon sufficient legal evidence, claimant’s life expectancy. The
With sufficient accuracy the defendants in error have thus stated the three principal questions involved: 1. The commission’s award is erroneous because' of the absence of a specific finding of fact as to the duration of the claimant’s expectancy; 2. The evidence to sustain the commission’s legal conclusion of expectancy, not its finding of fact thereupon, is wholly insufficient; 3. The commission has no power to require monthly payments in addition to a lump sum award.
There are only three grounds upon which the courts may affirm or set aside an award of the industrial commission: 1. That it acted without or in excess of its powers; 2. That the finding or award was procured by fraud: 3. That the findings of fact do not support the award.
No fraud is claimed, but the award is said to be invalid upon the other two grounds.
Much of the argument of defendants in error, in support of the judgment of the district court and its attack upon the award of the commission, is really directed to the insufficiency of the evidence to support the commission’s findings of fact. While the contention is also urged that such alleged findings of fact as were made, do not sustain the award, greater stress is laid upon the lack of evidence. Notwithstanding our previous decisions in these compensation cases that the weight and sufficiency of the evidence are not the subject of inquiry by the courts, parties persist in asking this court, in its r,eview of these controversies, to sit as triers of fact. In view of the record before us, we are also constrained to add, what we have declared in other cases, that failure and neglect of the industrial commission to make adequate and sufficient findings of all material facts upon which its award is based, give rise to unnecessary and prolonged litigation, which, in many of the cases, would be unnecessary if the commission followed the established practice in this particular. It might well, by analogy, observe the requirements of a court of equity
In its award of the lump sum here attacked, the finding of fact made by the commission on which such award was made, is in the following language:
“It is further found that the claimant has filed an application for a lump sum settlement for the purpose of purchasing a three acre tract of land in the town of Westminster, Adams county, Colorado. That it is for the best interests of the parties hereto that the lump sum application be granted to the applicant for said purpose. That the amount required therefor is $3,000.00. That the age of the claimant at the time of his accident was thirty-five years. That his expectancy of life as determined by the Workmen’s Compensation Law of Colorado is sufficient to entitle the payment of the total sum of $15,798.90 as compensation under the terms of the above Award. That to produce the sum of $3,000.00 requires that the sum of $5,264.48 be commuted according to the terms of the Workmen’s Compensation Law of Colorado, and said sum when so commuted equals the sum of $3000.00, which is to be paid the claimant in one lump sum. That after said sum shall be paid, it will reduce the probable amount to be paid to the claimant herein to the sum of $10,534.42. That said last named sum is used only for the purpose of computing the lump sum settlement above referred to and is not to be construed as a finding as to the total amount of compensation that the claimant herein may be entitled to receive. That the balance of compensation then to be paid to the claimant herein should be paid at the rate of $28.57 per calendar month beginning April 15, 1922, and continuing thereafter so long as claimant’s disability shall be permanent and total.”
The finding as to what is for the best interests of the parties is sufficiently definite. There is no specific finding of the life expectancy of the claimant. On the contrary, the commission states, as its conclusion, that his expect
Defendants in error, however, say that not only was no finding of fact made, but that if the commission had specifically found claimant’s life expectancy, there was no evidence before it legally sufficient to sustain the finding. Section 82 of the act, which authorizes an award of a lump sum, does not prescribe a method for determining life expectancy of the claimant, which expectancy both parties say is essential. Neither party formally introduced before the commission any evidence bearing upon that element of the case. Though section 82 is silent upon the subject, section 78, which relates to permanent partial disability, says that in determining the same the commission must take into consideration, among other things, the general physical condition of the claimant, his mental training, ability, former employment and education, and also the claimant’s expectancy of life. In determining such expectancy the commission must do so “from recognized expectancy tables and such other evidence relating to his expectancy as may
The employer and insurance carrier also further contend that it was necessary for the commission to take into consideration the claimant’s physical condition, and the other matters enumerated in section 78. The claimant was before the commission on different occasions and evidence was introduced. The commissioners had ample opportunity to judge of his general physical condition and as to the other enumerated matters, and it was not necessary for the commission, in the absence of any request therefor at the time of the hearing, to take evidence relating thereto. In the absence of anything in the record to the contrary, we may rightfully assume that the commission did its duty and considered not only the Colorado mortality table but all the other matters which section 78 requires, and gave them due weight in making its award.
It is further said that the commission in ascertaining the claimant’s expectancy did not take into consideration the fact that he was permanently disabled — and there was evidence that he had tuberculosis of the chest — but, on the contrary, assumed that his expectancy was the same as that of a man in normal health. As already indicated, in the state of this record, we are justified in assuming that the commission made due allowances, as the statute requires, for these and all other considerations that had any bearing upon, or related to, the claimant’s expectancy; such
We also add, without entering into detail, that from an inspection of the award, as made, it is apparent that the Colorado expectancy table must have been used. The figures which the Attorney General has set out in his brief, but which need not be reproduced here, satisfy us that this table was used, and properly used, by the commission. We conclude, therefore, that the undisputed evidence, taken as findings of fact, coupled with our assumption that the commission had before it the Colorado expectancy table, and that in reaching its conclusion that the same was taken into consideration, as were the matters specified in section 78, amply justify its award.
Defendants in error have assigned as cross-errors to the judgment of the district court, the failure of that tribunal, in accordance with their request, to direct the commission to withdraw its award of monthly payments after having awarded a lump sum. Their position is that the commission has no power or authority to award a lump sum compensation, unless and until it orders the suspension of the monthly compensation benefits until such time as the gross amount to be commuted into such lump sum would be realized by the payment of the maximum amount of monthly benefits, if no lump sum had been ordered. This contention, in other words, is that these monthly payments should be eliminated from the award. We do not so believe. Section 82 authorizes the commission “to order payment of all or any part of the compensation awarded in a lump sum, or in such manner as it may determine to be for the best interests of the parties concerned, and' its discretion so ox
It follows that the judgment of the district court was wrong and should be, and hereby is, reversed, and the case should be, and it is hereby, remanded to the district court with instructions to vacate its order setting aside the