Opinion
No. 13,003.
Decided June 6, 1932.
Proceeding under the Workmen's Compensation Act. Judgment of the district court setting aside supplemental award of the Industrial Commission.
Judgment Modified and Affirmed.
1. WORKMEN'S COMPENSATION — Practice and Procedure. A rule of the Industrial Commission, not pleaded, and which does not appear in the record, should not be considered by the court in an action to set aside an award of the commission.
Error to the District Court of Pueblo County, Hon. John H. Voorhees, Judge.
Mr. CLARENCE L. IRELAND, Attorney General, Mr. ARTHUR L. OLSON, Assistant, Mr. FRED W. VARNEY, for plaintiffs in error.
Mr. S. D. BROSIUS, for defendant in error.
ON January 7, 1930, C. M. Roper, a plumber's helper, broke his leg in an accident arising out of and in the course of his employment, and thereafter filed his claim for compensation. The insurance carrier, the Ocean Accident Guarantee Corporation, Limited, admitted liability, and agreed to pay compensation during disability. On July 18, 1930, the insurance carrier requested the permission of the Industrial Commission to suspend payment of compensation until such time as a hearing might be had to determine the extent of claimant's disability. On September 18, 1930, after a hearing, the referee of the Industrial Commission made his findings of fact and order, in which he determined that claimant's temporary disability terminated on July 1, 1930, and there was no permanent disability, and therefore, upon the payment of compensation, at the rate of $14 per week, from January 18, 1930, to June 30, 1930, the insurance carrier should be relieved of further payments. Several hearings were thereafter had, the result of which was a supplemental award of the Industrial Commission, dated February 24, 1931, in substance approving and affirming the findings of fact and order of the referee, dated September 18, 1930, hereinbefore mentioned. Claimant instituted an action in the district court to set aside and vacate the supplemental award of the Industrial Commission, and, upon trial, a judgment was rendered on November 10, 1931, setting aside and vacating the supplemented award, and remanding the cause to the Industrial Commission for further hearing and action. The Industrial Commission and the Ocean Accident Guarantee Corporation, Limited, prosecute this writ of error which became at issue on May 10, 1932.
An examination of the entire record herein discloses that there was no evidence to support the finding of the Industrial Commission that the temporary disability ended on June 30, 1930, and, for this reason alone, the district court was obliged to set aside and vacate the supplemental award.
The district court, however, ordered compensation paid until July 7, 1930, because of rule 11, Rules of Procedure of the Colorado Industrial Commission. This rule was not pleaded and does not appear in the record herein, and, in the absence thereof, the district court should not have considered it, and the judgment of the district court should be thus modified, and, as thus modified, the judgment is affirmed.
MR. CHIEF JUSTICE ADAMS and MR. JUSTICE CAMPBELL concur.