3. MASTER AND SERVANT-STATUTE REQUIRING DISTRICT COURT TO TRANSMIT RECORD TO INDUSTRIAL COMMISSION AT EXPIRATION OF 20 DAYS MANDATORY. Industrial Commission Act, § 106. relative to the transmission of the record to the commission following an order or judgment of the district court, is mandatory, and it is the duty of the district court to send the record to the commission at the expiration of 20 days from the order or judgment, or within 20 days from the expiration of a stay of execution, assuming that such stay is proper. (For other cases. see Master and Servant, Dec. Dig. § 417[9].) Department 2. Error to District Court, City and County of Denver; Clarence J. Morley, Judge. Proceeding under the Industrial Commission Act by Emily Ann Thomas, opposed by the General Chemical Company, and the Fidelity & Casualty Company of New York. An award of the Industrial Commission was affirmed by the District Court, and defendants bring error. On motion to dismiss the writ. Motion granted. Fred W. Varney, of Denver, for plaintiffs in error. Henry E. May and A. J. Gould, Jr., both of Denver, for defendants in error. DENISON, J. This is a writ of error to the Denver district court upon a judgment rendered October 5, 1921, affirming an award by the Industrial Commission in favor of Emily Ann Thomas. Sixty days were allowed for a bill of exceptions, which was signed November 10th, and 30 days' stay of execution. December 12th this writ of error was sued out. The Industrial Commission Act (Laws of 1919, page 744, § 106) provides : "The record in any case shall be transmitted to the commission within twenty days after the order or judgment of the court, unless, in the meantime, a writ of error addressed to the district court shall be obtained from the Supreme Court, for the review of such order or judgment." The defendants in error move to dismiss the writ, because it was sued out neither within said 20 days nor within. 20 days from the expiration of the said 30 days. The motion must be granted. [1] The plaintiff in error claims that the point was waived, because the defendants in error did not object at the time the 30 days for the bill was granted. Whether this waived the transmission of the record within 20 days from the judgment we do not determine; but it did not waive the requirement that such transmission be made within 20 days from the end of the 30 days' stay granted by the court. If the court had power to grant that 30 days at all, which we do not determine, the most that the plaintiff in error could claim for it would be that it postponed the time at which the 20 days began to run, not that it abrogated the 20-day requirement entirely. [2, 3] It is claimed that, since the writ of error was actually issued before the record was transmitted to the commission, it ought not to be dismissed; but this argument is not sound. The words "in the meantime" mean "within the twenty days," not "before the issue of the writ of error," and the delay of the clerk in transmitting the record, being a disobedience of the law, cannot avail. The statute is an express mandate in form, its purpose is to secure speedy compensation for those in need, to relieve from the law's delay those unable to bear it, by doing away with just such delays as have occurred here; it is, then, mandatory in substance. 1922.] IND. C. OF COLO. v. GEN. ACC., F. & L. A. Co. (Colo.) 337 It was the duty of the district court to send the record to the commission as soon as the 20 days expired, or, if the allowance of the 30 days for the bill was proper, then within 20 days from the end thereof. The motion is granted. Teller, Acting C. J., and Whitford, J., concur. INDUSTRIAL COMMISSION OF COLORADO ET AL. v. GENERAL (Supreme Court of Colorado. Feb. 6, 1922.) 204 Pacific Reporter, 338. 1. MASTER AND SERVANT-COURT MAY NOT SET ASIDE INDUSTRIAL COMMISSION'S FINDING OF FACT AS AGAINST EVIDECE AND ORDER COMPENSATION AMENDED ACCORDINGLY. AWARD The district court has no right to set aside or amend a finding of fact by the Industrial Commission as having no support in the evidence, and order the award amended accordingly, but under Laws 1919, c. 210, § 103, it can set aside the Commission's order or award only on the grounds (a) that the Commission acted without or in excess of its powers; (b) that the finding, order. or award was procured by fraud; or (c) that the Commission's findings of fact do not support the order or award. (For other cases, see Master and Servant, Dec. Dig. § 417[7].) 2. MASTER AND SERVANT - LOSS OF PARTS OF FINGERS COMPENSABLE AS PARTIAL LOSS OF USE OF HAND. In case of loss of parts of thumb and fingers, award of compensation. need not be by adding the scheduled benefits for such losses in the first part of Laws 1919, c. 210, § 73, but may be for partial loss of use of the hand under section 73g. (For other cases, see Master and Servant, Dec. Dig. § 385[12].) 3. MASTER AND SERVANT-PAYMENT BEFORE COMPENSATION AWARD CREDITED ON AWARD. Whatever has been paid by the insurer to an injured employee before award of the Industrial Commission is to be credited on the award, which does not purport to be of an additional compensation. (For other cases, see Master and Servant, Dec. Dig. § 385[17].) Error to District Court, City and County of Denver; Clarence J. Morley, Judge. Action by the General Accident, Fire & Life Assurance Corporation, Limited, and another, respectively, insurer and employer, against the Industrial Commission of Colorado and Ralph McConnell, to avoid an award made by it to him. There was a judgment remanding the cause to the Commission, with directions to amend, and the Commission and claimant bring error; the employer and insurer assigning cross-error. Reversed and remanded, with directions. 22 Vol. IX-Comp. Victor E. Keyes, Atty. Gen., and John S. Fine, Asst. Atty. Gen., for the Industrial Commission. H. I. Garbutt, of Ft. Collins, for Ralph McConnell. ALLEN, J. In a proceeding for compensation under the Workmen's Compensation Act (Laws 1919, c. 210), the Industrial Commission made an award in favor of the claimant, Ralph McConnell. The employer and the insurer brought an action in the district court to set aside the findings and award. Upon a hearing, the district court remanded the cause to the Industrial Commission, with directions to amend the award. The defendants, the Commission and the claimant, bring the cause here for review, and cross-error is assigned by plaintiffs, the employer and the insurer. [1] The plaintiffs in error complain of the district court's directions to amend the award. The Commission made a finding as to the average weekly wage of the claimant. The district court set aside the finding on the ground that it had no support in the evidence, and substituted a finding of its own, and ordered the award amended accordingly. This was error. The court had no right to set aside or to amend a finding of fact, and then order the award to be amended accordingly. The only grounds upon when a court may set aside an order or award of the Commission are set forth in section 103, c. 210, Session Laws of 1919, namely: (a) That the Commission acted without or in excess of its powers; (b) that the finding, order, or award was procured by fraud; and (c) that the findings of fact by the Commission do not support the order or award. The assignments of cross-error raise the question whether the Commission correctly designated the loss for which accident benefits are allowed. The claimant's injury resulted from getting his hand into a sausage grinder. A physician and surgeon testified that the claimant suffered the loss of thumb, index finger, and middle finger, each being taken off at the proximal joint; that the hand has been impaired 70 per cent. The witness was asked: "How do you determine the basis of disability, Doctor, as 70 per cent. ?" His answer was: "Loss of action of the hand from the wrist down. He has lost the thumb, both the index and middle fingers, and he has lost all the gripping power of his hand." The Commission found, and made the award accordingly: "That the claimant has sustained a permanent disability equal to a 70 per cent. loss of the use of his right hand measured from the wrist." [2] The contention of the defendant in error is claimant was entitled only to compensation for the loss of the thumb and fingers; in other words, that the Commission was bound to act only under the first part of section 73 of the act of 1919, which, so far as material here, reads as follows: "In cases included in the following schedule the disability in each case shall be deemed to continue for the period specified and the compensation to be paid for such loss shall be specified herein, to wit: *** The loss of a hand 104 weeks. * * * The loss of a thumb at the proximal joint 35 weeks. Loss of an index finger at the proximal joint 18 weeks. * Loss of a middle finger at the proximal joint 13 weeks." * * * * The Commission proceeded under subdivision (g) of section 73, which, so far as material in this connection, reads as follows: “Where an injury causes the loss of use or partial loss of use of any member or members specified in the foregoing schedule, the Commission may determine the disability suffered and the amount of compensation to be awarded. by awarding compensation which shall bear such relation to the amount stated in the above schedule for the loss of a member or members as the disabilities bear to the loss produced by the injuries named in the schedule." This provision authorizes the finding and award of the Commission in respect to the matter now under consideration. The schedule, heretofore quoted, includes "the loss of a hand." Under subdivision (g) the Commission could, as it did, award compensation for the "partial loss of use" of the hand. In North Beck Mining Co. v. Industrial Commission (Utah) 200 Pac. 111, the claimant had suffered the total loss of some of his fingers and the partial loss of others, and it was held that the Commission was not obliged to compensate for the loss by adding the scheduled benefits for the loss of each finger, or proceed under the schedules for specific losses, but could act under that clause of the statute which allowed compensation for the loss of a "bodily function not otherwise provided for," and thereby make an award, as it did in that case, for the partial loss of the use of the hand. The conclusion we reach is also supported by Rockwell v. Lewis, 168 App. Div. 674, 154 N. Y. Supp. 893, holding that— * * "Where the loss or injury to fingers and thumb result in the permanent loss of the use of the hand, * the Commission is authorized to recognize this fact and to treat the hand as lost in fixing the compensation," instead of confining the compensation to the schedule rate for fingers. In the instant case the Commission correctly treated the partial loss of the use of the hand as being the compensable loss sustained. It committed no error in not designating the injury as a loss of the thumb and fingers and awarding the scheduled benefits for the loss of such members. [3] It is further argued that the Commission could not award compensation for the loss of thumb and fingers under the schedule and then add thereto the compensation allowed for the loss or partial loss of the use of the hand. With this contention we agree, but not with the further assertion, or the assumption, that there was an award of double compensation in this case. It is admitted by the pleadings that the insurer, prior to the hearing and the award, paid to claimant the amount of compensation, where the average weekly wage is $10, which the statute provides for the loss of thumb and two fingers. The Commission's award does not purport, however, to be one of an additional compensation. The award is the full or entire compensation, and whatever the insurer has already paid may and should be credited upon the award. The judgment is reversed, and the cause remanded, with directions to affirm the findings and award of the Industrial Commission. Teller, J., sitting for Scott, C. J., and Whitford, J., concur. INDUSTRIAL COMMISSION OF COLORADO ET AL. V. PEPPAS. (No. 10224.) (Supreme Court of Colorado. Jan. 9, 1922.) 203 Pacific Reporter, 664. 1. MASTER AND SERVANT CLAIM FOR COMPENSATION HELD BARRED BY FAILURE TO GIVE NOTICE. Under Laws 1915, p. 551, § 62, providing that the failure to give notice of claim for compensation within 30 days shall not bar recovery if the claimants were nonresidents, but that if no such notice is given and no payment of compensation has been made within one year from the accident the right to compensation shall be wholly barred, the wife of a deceased employee cannot recover compensation, though she resided in Greece, and that country was blockaded at the time of the accident, where no claim was made by her within one year after the time she received actual notice of the accident, even if the blockade would have excused delay before receiving such notice. (For other cases, see Master and Servant, Dec. Dig. § 398.) 2. MASTER AND SERVANT APPLICATION TO INDUSTRIAL COMMISSION PREREQUISITE TO REVIEW BY COURT "HEARING." Under Laws 1915, p. 556, § 77, prohibiting an action to set aside an award of the Industrial Commission unless the plaintiff shall have first applied to the Commission for a hearing thereon, the hearing required is a hearing upon the application to set aside or vacate the award, and the condition is not satisfied by the original hearing upon which the award was based. (For other cases, see Master and Servant, Dec. Dig. § 417[1].) (For other definitions, see Words and Phrases, First and Second Series, Hearing.) 3. MASTER AND SERVANT-AMENDMENT REGULATING REVIEW OF COMPENSATION AWARD RETROACTIVE. The amendment to the Workmen's Compensation Act by Laws 1919, p. 741, § 98, so as to provide that no action to vacate an award of the Commission shall be brought unless the plaintiff has first applied to the Commission for a review, is remedial, and applies to an award made after its enactment, though the injury was received before it was enacted. (For other cases, see Master and Servant, Dec. Dig. § 417[1].) Department 3. Error to District Court, City and County of Denver; Clarence J. Morley, Judge. Proceedings by Sophia James Pappas under the Workmen's Compensation Act to recover compensation for the death of her husband, opposed by the Tioga Coal Company, employer, and the Employers' Mutual Insurance Company. An award by the Industrial Commission denying the claim was reversed by the district court, and the Industrial Commission, the employer, and insurer bring error. Reversed and remanded, with directions to affirm the award of the Commission. Decedent, Peppas, a citizen of Greece, was the husband of defendant in error (hereinafter referred to as plaintiff) and she and her children still reside there. Pappas was injured November 14, 1916, and from the effects of that injury died four days later. Greece was blockaded from November, 1916, to August, 1917. Plaintiff received information of the death in November, 1917, and executed and sent to the United States a power of attorney, authorizing two persons named therein to represent her in connection with any rights or claims she might have by reason of said injury and death. No action was taken under said power of attorney. January 6, 1920, the Consul of Greece, stationed at San Francisco, filed claim for compensation with the Industrial Commission. August 16, 1921, the Commission rendered its findings and award, denying the claim. An appeal was taken to the district court, where the findings and award were reversed. To review that judgment the cause is now before us. |