Industrial Commission v. Canfield , 172 Colo. 18 ( 1970 )

Mr. Justice Groves

specially concurring:

I concur in the result, although I would have little trouble in going further and ruling that the decision of the Industrial Commission should be reinstated. The reason for this mild expostulation is that the rule of City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194, should not be applied unless there is a showing that the claimant, as a reasonable man, did not recognize until some time after the accident that he had sustained the injuries for which he ultimately sought compensation. Absent such a showing, I think the law is, or at least should be, that the date of the injury is presumed to be the date of the accident.

The claimant thought initially that he had injured his heel. He testified that his doctor advised him on the day following the accident that the injury actually was to his back. The record continues as follows:

“Q. Then did he prescribe any treatment for you?

A. He did. He told me, he says, ‘What you should do is go to surgery,’ and I didn’t want to. ‘Well,’ he said, T will be very frank with you. Sometimes we can help this with medication.’

Q. Did he give you medication?

A. He did. Twice a week I took some kind of shots he gave me, and also some pills.

Q. Do you know what these shots or pills were or what they were for?

A. Well, they were for the back, I couldn’t tell you what they contained or anything.

Q. All right, now, at the time that you first started seeing Dr. Nuttall, what was your condition?

A. Well, I couldn’t — I had no strength in my heel, and the pain was, I would say, very bad.”

I agree that technically the Commission should make a finding as to the date of the injury. The remand, however, is probably an academic pursuit as I am inclined to believe that there was no compelling evidence to sustain a finding that the injury was first recognized later than the day following the accident.

In order to show reasonable excuse, the claimant must show that he did not, as a reasonable man, recognize the possible extent or the compensable nature of his injury until after May 24, 1966, i.e., less than one year prior to the filing of his claim on May 24, 1967.