Colorado § 8-43-308 - Causes for setting aside award.

§ 8-43-308. Causes for setting aside award.

Upon hearing the action, the court of appeals may affirm or set aside such order, but only upon the following grounds: That the findings of fact are not sufficient to permit appellate review; that conflicts in the evidence are not resolved in the record; that the findings of fact are not supported by the evidence; that the findings of fact do not support the order; or that the award or denial of benefits is not supported by applicable law. If the findings of fact entered by the director or administrative law judge are supported by substantial evidence, they shall not be altered by the court of appeals.

Source: L. 90: Entire article R&RE, p. 511, § 1, effective July 1.

Editor's note: This section is similar to former § 8-53-120 as it existed prior to 1990.

ANNOTATION

I. General Consideration.

I. GENERAL CONSIDERATION.

Annotator's note. (1) The following annotations include cases decided under former provisions similar to this section.

(2) Cases included in the annotations to this section which refer to the industrial commission were decided prior to the 1973 amendment which vested in the director of the division of labor fact-finding powers previously exercised by the industrial commission or were decided prior to the enactment of 1986 Senate Bill No. 12 which abolished said commission.

Neither the district court nor the supreme court can usurp the functions of the commission. Hatterman v. Indus. Comm'n, 171 Colo. 370, 467 P.2d 820 (1970).

And the commission is vested with the widest possible discretion. In determining the extent or degree of disability of an injured workman upon the facts of each case, it is axiomatic that the commission is vested with the widest possible discretion with the exercise of which the courts will not interfere. Also the presumption exists that in making an award the commission considered and gave due weight to all of the factors therein enumerated. N.J. Zinc Co. v. Indus. Comm'n, 165 Colo. 482, 440 P.2d 284 (1968).

For the commission is the fact finder, and it must be the one to evaluate the evidence and draw conclusions therefrom. Passini v. Indus. Comm'n, 64 Colo. 349, 171 P. 369 (1918); Weaver v. Indus. Comm'n, 72 Colo. 79, 209 P. 642 (1922); Rogers v. Indus. Comm'n, 94 Colo. 56, 28 P.2d 343 (1933); Empire Zinc Co. v. Indus. Comm'n, 94 Colo. 98, 28 P.2d 337 (1933); Poole v. Indus. Comm'n, 94 Colo. 163, 28 P.2d 809 (1934); Hayden Bros. Coal Corp. v. Indus. Comm'n, 94 Colo. 211, 29 P.2d 637 (1934); Central Sur. & Ins. Corp. v. Indus. Comm'n, 94 Colo. 341, 30 P.2d 253 (1934); Boulder Valley Coal Co. v. Shipka, 94 Colo. 394, 30 P.2d 852 (1934); Jabot v. Indus. Comm'n, 94 Colo. 424, 30 P.2d 871 (1934); C.S. Card Iron Works Co. v. Radovich, 94 Colo. 426, 30 P.2d 1108 (1934); Allen v. Gettler, 94 Colo. 528, 30 P.2d 1117 (1934); United States Fid. & Guar. Co. v. Indus. Comm'n, 96 Colo. 571, 45 P.2d 895 (1935); Adolph Coors Co. v. Hollaus, 108 Colo. 360, 117 P.2d 822 (1941); Miller v. Denver Post, Inc., 137 Colo. 61, 322 P.2d 661 (1958); Indus. Comm'n v. Klaczkowski, 146 Colo. 11, 360 P.2d 104 (1961); Skinner v. Indus. Comm'n, 152 Colo. 97, 381 P.2d 253 (1963); State v. Richards, 158 Colo. 155, 405 P.2d 675 (1965); Clodfelter v. Indus. Comm'n, 160 Colo. 39, 413 P.2d 700 (1966); Breit v. Indus. Comm'n, 160 Colo. 205, 415 P.2d 858 (1966); Levy v. Everson Plumbing Co., 171 Colo. 468, 468 P.2d 34 (1970); Sena v. World of Sleep, Inc., 173 Colo. 348, 478 P.2d 671 (1970); Indus. Comm'n v. Ewing, 174 Colo. 133, 482 P.2d 981 (1971).

Legislative intent that commission be fact finder apparent from section. That the general assembly intended the commission should be a fact-finding body whose conclusions on disputed testimony should be binding on the courts of review is apparent from this section, which sets forth the only grounds upon which awards may be set aside by the district court. United States Fid. & Guar. Co. v. Indus. Comm'n, 96 Colo. 571, 45 P.2d 895 (1935).

The commission as the fact finder is the sole judge of the credibility of witnesses appearing before it. Regal Coal Co. v. Jackvich, 105 Colo. 479, 99 P.2d 196 (1940); Moffat Coal Co. v. Indus. Comm'n, 108 Colo. 388, 118 P.2d 769 (1941).

And the weight to be given to medical testimony is a matter exclusively for the commission. Cordillo v. Indus. Comm'n, 110 Colo. 581, 136 P.2d 671 (1943).

Also, the weight to be given the opinion of a physician is for the commission to determine. White v. Dir. of Div. of Labor, 30 Colo. App. 393, 493 P.2d 676 (1972).

Furthermore, the commission has the duty and sole power to find the facts from conflicting evidence. Rogers v. Indus. Comm'n, 94 Colo. 56, 28 P.2d 343 (1933); Boulder Valley Coal Co. v. Shipka, 94 Colo. 394, 30 P.2d 852 (1934); Montgomery Ward & Co. v. Indus. Comm'n, 105 Colo. 22, 94 P.2d 689 (1939).

So that the findings of the commission on conflicting testimony are conclusive upon the courts. Olson-Hall v. Indus. Comm'n, 71 Colo. 228, 205 P. 527 (1922); Indus. Comm'n v. Ernest Irvine, Inc., 72 Colo. 573, 212 P. 829 (1923); Bohmann v. Indus. Comm'n, 76 Colo. 588, 233 P. 621 (1925); Indus. Comm'n v. Robinson, 85 Colo. 279, 275 P. 903 (1929); N.J. Fid. & Plate Glass Ins. Co. v. Patterson, 86 Colo. 580, 284 P. 334 (1929); Indus. Comm'n v. Diveley, 88 Colo. 190, 294 P. 532 (1930); Indus. Comm'n v. Coop. Oil Co., 93 Colo. 192, 24 P.2d 753 (1933); Jabot v. Indus. Comm'n, 94 Colo. 424, 30 P.2d 871 (1934); Clarke v. Clarke, 95 Colo. 409, 36 P.2d 461 (1934); Indus. Comm'n v. Dorchak, 97 Colo. 142, 47 P.2d 396 (1935); Skjoldahl v. Indus. Comm'n, 108 Colo. 140, 113 P.2d 871 (1941); Black Forest Fox Ranch, Inc. v. Gerrett, 110 Colo. 323, 134 P.2d 332 (1943); Sommers v. Borgmann, 111 Colo. 552, 144 P.2d 554 (1943); Vanadium Corp. of Am. v. Sargent, 134 Colo. 555, 307 P.2d 454 (1957); Claimants in re Death of Bennett v. Durango Furn. Mart, 136 Colo. 529, 319 P.2d 494 (1957); United Util. & Specialties Corp. v. Indus. Comm'n, 160 Colo. 518, 418 P.2d 896 (1966); N.J. Zinc Co. v. Indus. Comm'n, 165 Colo. 482, 440 P.2d 284 (1968); Indus. Comm'n v. Allen, 28 Colo. App. 546, 478 P.2d 702 (1970).

Findings of fact of the commission based on conflicting evidence are conclusive on review. Archer Freight Lines v. Horn Transp., Inc., 32 Colo. App. 412, 514 P.2d 330 (1973); Safeway Stores v. Indus. Comm'n, 678 P.2d 1078 (Colo. App. 1984).

When supported by competent evidence. Fact findings by the commission which are supported by competent evidence will not be disturbed on review. Youngquist v. Indus. Comm'n, 67 Colo. 187, 184 P. 381 (1919); C.W. Kettering Mercantile Co. v. Fox, 77 Colo. 90, 234 P. 464 (1925); Indus. Comm'n v. Hammond, 77 Colo. 414, 236 P. 1006 (1925); Vaughan v. Indus. Comm'n, 79 Colo. 257, 245 P. 712 (1926); Newkirk v. Golden Cycle Mining & Reduction Co., 79 Colo. 298, 244 P. 1019 (1926); Employers' Mut. Ins. Co. v. Indus. Comm'n, 83 Colo. 315, 265 P. 99 (1928); Colo. Fuel & Iron Co. v. Indus. Comm'n, 85 Colo. 237, 275 P. 910 (1929); Indus. Comm'n v. Robinson, 85 Colo. 279, 275 P. 903 (1929); N.J. Fid. & Plate Glass Ins. Co. v. Richey, 85 Colo. 376, 275 P. 937 (1929); Beatrice Creamery Co. v. Standley, 86 Colo. 290, 281 P. 110 (1929); Indus. Comm'n v. Diveley, 88 Colo. 190, 294 P. 532 (1930); Hayden Bros. Coal Corp. v. Indus. Comm'n, 94 Colo. 211, 29 P.2d 637 (1934); C.S. Card Iron Works Co. v. Radovich, 94 Colo. 426, 30 P.2d 1108 (1934); Allan v. Gettler, 94 Colo. 528, 30 P.2d 1117 (1934); State Comp. Ins. Fund v. Indus. Comm'n, 95 Colo. 309, 35 P.2d 849 (1934); O.P. Skaggs Co. v. Nixon, 97 Colo. 314, 50 P.2d 55 (1935); Elleman v. Indus. Comm'n, 100 Colo. 120, 66 P.2d 323 (1937); Skjoldahl v. Indus. Comm'n, 108 Colo. 140, 113 P.2d 871 (1941); Great Am. Indem. Co. v. State Comp. Ins. Fund, 108 Colo. 323, 116 P.2d 919 (1941); Metros v. Denver Coney Island, 110 Colo. 40, 129 P.2d 911 (1942); Black Forest Fox Ranch v. Garrett, 110 Colo. 323, 134 P.2d 332 (1943); Warner v. Mullens, 111 Colo. 60, 137 P.2d 420 (1943); Indus. Comm'n v. Menegatti, 111 Colo. 484, 143 P.2d 274 (1943); State Comp. Ins. Fund v. Batis, 117 Colo. 1, 183 P.2d 891 (1947); Indus. Comm'n v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952); Univ. of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953); United States Fid. & Guar. Co. v. Indus. Comm'n, 128 Colo. 68, 259 P.2d 869 (1953); Montgomery Ward & Co. v. Indus. Comm'n, 128 Colo. 465, 263 P.2d 817 (1953); Hamilton v. Indus. Comm'n, 132 Colo. 408, 289 P.2d 639 (1955); Indus. Comm'n v. Colo. Fuel & Iron Corp., 135 Colo. 307, 310 P.2d 717 (1957); Miller v. Denver Post, Inc., 137 Colo. 61, 322 P.2d 661 (1958); Lamirato v. O.C. Kinney, Inc., 142 Colo. 48, 349 P.2d 562 (1960); Cole. v. Indus. Comm'n, 144 Colo. 183, 355 P.2d 537 (1960); Stauss v. Indus. Comm'n, 144 Colo. 288, 355 P.2d 1076 (1960); Indus. Comm'n v. Klaczkowski, 146 Colo. 11, 360 P.2d 104 (1961); Huff v. Aetna Ins. Co., 146 Colo. 63, 360 P.2d 667 (1961); Idarado Mining Co. v. Barnes, 148 Colo. 166, 365 P.2d 36 (1961); Jones v. Indus. Comm'n, 148 Colo. 253, 365 P.2d 689 (1961); Nat'l Sugar Mfg. Co. v. Bauer, 148 Colo. 436, 366 P.2d 388 (1961); Indus. Comm'n v. Hesler, 149 Colo. 592, 370 P.2d 428 (1962); Univ. of Denver-Colorado Sem. & Univ. Park Campus v. Johnston, 151 Colo. 465, 378 P.2d 830 (1963); Tri-State Ins. Co. v. Indus. Comm'n, 151 Colo. 494, 379 P.2d 388 (1963); Skinner v. Indus. Comm'n, 152 Colo. 97, 381 P.2d 253 (1963); Bowlus v. Indus. Comm'n, 152 Colo. 535, 383 P.2d 789 (1963); Sharmar Nursing Home v. Indus. Comm'n, 160 Colo. 197, 416 P.2d 161 (1966); Breit v. Indus. Comm'n, 160 Colo. 205, 415 P.2d 858 (1966); Indus. Comm'n v. Albo, 167 Colo. 467, 447 P.2d 1006 (1968); Claim of Crandall v. Watson-Wilson Transp. Sys., 171 Colo. 329, 467 P.2d 48 (1970); Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970); Indus. Comm'n v. Allen, 28 Colo. App. 546, 478 P.2d 702 (1970); Indus. Comm'n v. Ewing, 174 Colo. 133, 482 P.2d 981 (1971); Tatum-Reese Dev. Corp. v. Indus. Comm'n, 30 Colo. App. 149, 490 P.2d 94 (1971); Ringsby Truck Lines v. Indus. Comm'n, 30 Colo. App. 224, 491 P.2d 106 (1971); Bodensieck v. Indus. Claim Appeals Office, 183 P.3d 684 (Colo. App. 2008).

Which evidence is respectable. It is the function of the commission to find the facts in workmen's compensation cases, and such findings, having respectable evidentiary support, are controlling. Indus. Comm'n v. White, 97 Colo. 322, 49 P.2d 434 (1935).

An appellate court does not decide the facts and may not substitute its judgment for that of the fact-finder. Martinez v. Reg'l Transp. Dist., 832 P.2d 1060 (Colo. App. 1992); Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo. App. 1993); Metro Moving & Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995); Wilson v. Indus. Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).

Ample. Courts are powerless to interfere with findings of the commission, in cases in which the facts are disputed, where such findings are amply supported by the evidence. London Gold Mines Co. v. Custer, 101 Colo. 477, 74 P.2d 679 (1937); Martin v. Indus. Comm'n, 101 Colo. 540, 74 P.2d 1243 (1937); Montgomery Ward & Co. v. Indus. Comm'n, 105 Colo. 22, 94 P. 2d 689 (1939); Beatrice Foods Co., Inc. v. Padilla, 747 P.2d 685 (Colo. App. 1987).

Or substantial. Findings of the commission as to facts must be accepted by the courts if there is any substantial evidence to support them. Platt-Rogers, Inc. v. Indus. Comm'n, 101 Colo. 458, 74 P.2d 673 (1937); Consol. Coal & Coke Co. v. Lazaroff, 109 Colo. 248, 124 P.2d 755 (1942); Zuzich v. Leyden Lignite Co., 120 Colo. 21, 206 P.2d 833 (1949); Raisch v. Indus. Comm'n, 721 P.2d 693 (Colo. App. 1986).

Evidentiary and ultimate findings need be specific only as to persuasive and determinative matters. Roe v. Indus. Comm'n, 734 P.2d 138 (Colo. App. 1986).

The ALJ's determination must be upheld if supported by substantial evidence. Christie v. Coors Transp. Co., 919 P.2d 857 (Colo. App. 1995), aff'd, 933 P.2d 1330 (Colo. 1997); Joslins Dry Goods Co. v. Indus. Claim Appeals Office, 21 P.3d 866 (Colo. App. 2001); Loveland Police Dept. v. Indus. Claim Appeals Office, 141 P.3d 943 (Colo. App. 2006).

Where substantial evidence supports the findings of the industrial claim appeals office the court is bound by that finding. Pub. Serv. Co. v. Indus. Claim Appeals Office, 979 P.2d 584 (Colo. App. 1999).

Substantial evidence is that which is probative, credible, and competent, such that it warrants a reasonable belief in the existence of a particular fact without regard to contradictory testimony or inference. Allen Co. v. Indus. Comm'n, 762 P.2d 677 (Colo. 1988); Colo. State Bd. of Med. Exam'rs v. Davis, 893 P.2d 1365 (Colo. App. 1995); Loveland Police Dept. v. Indus. Claim Appeals Office, 141 P.3d 943 (Colo. App. 2006).

Even though the commission has never seen the witnesses. From this section, it is apparent that even in a case where the commission has never seen the witnesses, it was the legislative intent that the findings of fact nevertheless should be binding on the district court and the supreme court. United States Fid. & Guar. Co. v. Indus. Comm'n, 96 Colo. 571, 45 P.2d 895 (1935); Zuzich v. Leyden Lignite Co., 120 Colo. 21, 206 P.2d 833 (1949).

And although three different findings are made. In a workmen's compensation case, although three different findings of fact are made, this did not nullify the rule that fact findings based on conflicting evidence are binding on the courts, and the last finding is conclusive. Indus. Comm'n v. Aetna Life Ins. Co., 88 Colo. 82, 292 P. 229 (1930).

But findings of fact are not conclusive unless supported by evidence. Determinations of fact are not final and conclusive unless they are substantially supported by the evidence. Indus. Comm'n v. W. A. Hover & Co., 82 Colo. 335, 259 P. 509 (1927); London Guarantee & Accident Co. v. Indus. Comm'n, 95 Colo. 306, 35 P.2d 1010 (1934).

Or a reasonable and fair inference therefrom. Findings which are not supported by the evidence, or a reasonable and fair inference therefrom, form no basis upon which to predicate an award. Gates v. Cent. City Opera House Ass'n, 107 Colo. 93, 108 P.2d 880 (1940).

Undisputed evidence may be treated as findings of fact. Where the evidence is short and undisputed, it may be treated on review as the findings of fact and considered accordingly. Prouse v. Indus. Comm'n, 69 Colo. 382, 194 P. 625 (1920); Indus. Comm'n v. Big Six Coal Co., 72 Colo. 377, 211 P. 361 (1922); Frink Dairy Co. v. Indus. Comm'n, 78 Colo. 71, 239 P. 727 (1925); Winteroth v. Indus. Comm'n, 93 Colo. 38, 22 P.2d 865 (1933).

And other undisputed facts may be considered with findings. In an action involving an award, the district court has the right to consider, with the findings, other undisputed facts. Indus. Comm'n v. Cornelius, 81 Colo. 111, 253 P. 828 (1927).

Furthermore, where the facts are undisputed, the entire question is one of law and courts are not bound by the commission's conclusions of law. Indus. Comm'n v. Int'l Minerals & Chem. Corp., 132 Colo. 256, 287 P.2d 275 (1955); Vanadium Corp. of Am. v. Sargent, 134 Colo. 555, 307 P.2d 454 (1957); Denver Truck Exch. v. Perryman, 134 Colo. 586, 307 P.2d 805 (1957); Indus. Comm'n v. London & Lancashire Indem. Co., 135 Colo. 372, 311 P.2d 705 (1957); Indus. Comm'n v. Havens, 136 Colo. 111, 314 P.2d 698 (1957); Marotte v. State Comp. Ins. Fund, 145 Colo. 99, 357 P.2d 915 (1960); Johnson v. Indus. Comm'n, 148 Colo. 561, 366 P.2d 864 (1961).

Order which reached correct result was affirmed even if wrong reasons for result given. A & R Concrete Const. v. Lightner, 759 P.2d 831 (Colo. App. 1988).

Commission's jurisdiction limited to determining right to compensation and liability. The jurisdiction of the commission is limited to a determination of the right of an employee to compensation and to a determination of who is liable for the award under the statute, and collateral issues relating to the contractual rights and liabilities between the employers are of no concern to the employee and should be resolved by a court in an independent proceeding in which the employee should not be required to participate. Archer Freight Lines v. Horn Transp., Inc., 32 Colo. App. 412, 514 P.2d 330 (1973).

No jurisdiction to enforce awards where claimant asks only that the court "assist" her in recovering the money she was awarded. Enforcement of awards is to be sought through the district courts pursuant to § 8-44-107 (3) (decided under former law). Passaretti v. Indus. Comm'n, 711 P.2d 1285 (Colo. App. 1985).

II. SCOPE OF REVIEW.

A. In General.

B. Acts Not Supported by Law.

C. Findings of Fact.

A. In General.

The orderly functioning of judicial review requires that the grounds upon which an administrative agency acts be clearly disclosed and adequately sustained. Hall v. Indus. Claim Appeals Office, 757 P. 2d 1132 (Colo. App. 1988).

The determination of the weight and sufficiency of the evidence is for the commission. London Guarantee & Accident Co. v. Indus. Comm'n, 72 Colo. 177, 210 P. 70 (1922); Indus. Comm'n v. Big Six Coal Co., 72 Colo. 377, 211 P. 361 (1922); Pub. Serv. Co. v. Indus. Comm'n, 89 Colo. 440, 3 P.2d 799 (1931).

And the court can review questions of law only. Olson-Hall v. Indus. Comm'n, 69 Colo. 518, 194 P. 212 (1921).

This section restricts appellate review to a review of legal errors in workers' compensation cases. Martinez v. Reg'l Transp. Dist., 832 P.2d 1060 (Colo. App. 1992).

For courts are without power to determine questions of fact in workmen's compensation cases. Ellerman v. Indus. Comm'n, 73 Colo. 20, 213 P. 120 (1923); Colo. Fuel & Iron Co. v. Indus. Comm'n, 85 Colo. 237, 275 P. 910 (1929).

On review the court may consider only the legal question of whether there is evidence to support the findings. McPhee & McGinnity Co. v. Indus. Comm'n, 67 Colo. 86, 185 P. 268 (1919); Kokotovich v. Indus. Comm'n, 69 Colo. 572, 195 P. 646 (1921); Indus. Comm'n v. Ernest Irvine, Inc., 72 Colo. 573, 212 P. 829 (1923); Nat'l Lumber & Creosoting Co. v. Kelly, 99 Colo. 442, 63 P.2d 457 (1936); Wood v. Indus. Comm'n, 100 Colo. 209, 66 P.2d 806 (1937); Vanadium Corp. of Am. v. Sargent, 134 Colo. 555, 307 P.2d 454 (1957); Indus. Comm'n v. Navajo Freight Lines, 149 Colo. 86, 367 P.2d 894 (1962); Univ. of Denver Colo. Sem. & Univ. Park Campus v. Johnston, 151 Colo. 465, 378 P.2d 830 (1963); Steel Placers, Inc. v. Reese, 169 Colo. 360, 455 P.2d 874 (1969).

And the court exceeds its jurisdiction if it attempts to pass upon the weight of the evidence introduced before the commission. Indus. Comm'n v. Aetna Life Ins. Co., 88 Colo. 82, 292 P. 229 (1930).

Appellate court is bound by the administrative law judge's resolution of credibility issues. Riddle v. Ampex Corp., 839 P.2d 489 (Colo. App. 1992).

For under the provisions of the workmen's compensation act, reviewing courts are precluded from passing upon the weight or sufficiency of the evidence, or its probative effect, and if the findings of fact made by the commission are upheld by the evidence, they will be affirmed. Weaver v. Indus. Comm'n, 72 Colo. 79, 209 P. 642 (1922).

The weight and sufficiency of the evidence and the inferences drawn therefrom are matters solely within the prerogative of the industrial commission. Archer Freight Lines v. Horn Transp., Inc., 32 Colo. App. 412, 514 P.2d 330 (1973).

Where findings support the award, it is not for the court to say whether the evidence justifies the commission's findings. Lindsay v. Indus. Comm'n, 77 Colo. 424, 236 P. 1005 (1925).

Furthermore, the court cannot review a case on the evidence where any of the facts are in dispute. Billick v. Indus. Comm'n, 69 Colo. 471, 195 P. 114 (1921).

Court may not substitute its findings. Where there is sufficient competent evidence to support the findings and award, they are binding on review, and courts are not at liberty, although they may disagree with the conclusions reached by the commission, to substitute therefor findings which to them may seem more compatible with the evidence. Am. Mining Co. v. Zupet, 101 Colo. 238, 72 P.2d 281 (1937); Univ. of Denver-Colorado Sem. & Univ. Park Campus v. Johnston, 151 Colo. 465, 378 P.2d 830 (1963).

Inferences and conclusions to be drawn from the evidence in workmen's compensation cases, are for the commission and not for the courts. Indus. Comm'n v. Valdez, 101 Colo. 482, 74 P.2d 710 (1937); Consol. Coal & Coke Co. v. Lazaroff, 109 Colo. 248, 124 P.2d 755 (1942); Indus. Comm'n v. Menegatti, 111 Colo. 484, 143 P.2d 274 (1943); Zuzich v. Leyden Lignite Co., 120 Colo. 21, 206 P.2d 833 (1949).

And the court cannot create a presumption, unsupported by the record, which would nullify the commission's findings. Platt-Rogers v. Indus. Comm'n, 101 Colo. 458, 74 P.2d 673 (1937).

Thus, judgment arbitrarily rejecting findings will be reversed. A judgment of the court arbitrarily rejecting the findings of the industrial commission, and plainly inconsistent with such findings, was reversed and the cause remanded with directions to approve such findings and enter judgment accordingly. Indus. Comm'n v. Johnson, 66 Colo. 292, 181 P. 977 (1919).

But courts may examine record to determine whether there is evidence to support the findings. What constitutes evidence is a question of law, and if there is no evidence to support the findings, it follows that the commission acted in excess of its powers. Colo. Contracting Co. v. Indus. Comm'n, 74 Colo. 206, 219 P. 1075 (1923); United States Fid. & Guar. Co. v. Indus. Comm'n, 96 Colo. 571, 45 P.2d 895 (1935).

Fact-findings based on conflicting evidence will not be disturbed on review. Nat'l Lumber & Creosoting Co. v. Kelly, 101 Colo. 535, 75 P.2d 144 (1937); State Comp. Ins. Fund v. Russell, 105 Colo. 274, 96 P.2d 846 (1939); Olson v. Erickson, 105 Colo. 489, 99 P.2d 199 (1940); Barker v. Indus. Comm'n, 108 Colo. 338, 117 P.2d 319 (1941); Deline v. Indus. Comm'n, 108 Colo. 351, 116 P.2d 916 (1941); Rand v. Indus. Comm'n, 110 Colo. 240, 132 P.2d 784 (1942); Cordillo v. Indus. Comm'n, 110 Colo. 581, 136 P.2d 671 (1943); Sims v. Indus. Claim Appeals Office, 797 P.2d 777 (Colo. App. 1990).

The court is bound by the administrative law judge's factual determinations, even when the evidence is conflicting and would have supported a contrary result. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo. App. 1993).

Although the court may not agree with conclusions of the commission which are based upon conflicting testimony in a workmen's compensation case, notwithstanding, if there is sufficient competent evidence to sustain the findings, they should not be disturbed on judicial review. Coors Co. v. Hollaus, 108 Colo. 360, 117 P.2d 822 (1941).

But courts may draw own conclusions where evidence is without substantial conflict. In workmen's compensation cases where the evidence as disclosed by the record is without substantial conflict as to the controlling issues involved, courts may properly draw their own conclusions therefrom and enter judgment accordingly, notwithstanding the determination may be contrary to the findings and award. Indus. Comm'n v. Betz, 111 Colo. 401, 142 P.2d 389 (1943); Arvas v. McNeil Coal Corp., 119 Colo. 289, 203 P.2d 906 (1949).

For when commission makes fact-finding contrary to the uncontradicted evidence, it acts in excess of its powers. In such circumstances, a court in reviewing the action of the commission is passing upon a question of law and not making a finding of fact; consequently it is not usurping the fact-finding function. O. P. Skaggs Co. v. Nixon, 97 Colo. 314, 50 P.2d 55 (1935).

When court authorized to direct a finding of fact. There must be no competent evidence in the record that claimant's disability was not caused by the accident and uncontroverted competent evidence that it was so caused before a court is authorized to direct a finding of fact by the commission. O. P. Skaggs Co. v. Nixon, 97 Colo. 314, 50 P.2d 55 (1935); Indus. Comm'n v. Wetz, 100 Colo. 161, 66 P.2d 812 (1937); Indus. Comm'n v. Menegatti, 111 Colo. 484, 143 P.2d 274 (1943).

Courts are forbidden to pass upon the referee's rulings at the hearing, such as objections to the admission of testimony, the weight of evidence, credibility of witnesses and mere irregularities in procedure. Zook v. Indus. Comm'n, 75 Colo. 41, 223 P. 751 (1924); Compstock v. Biven, 78 Colo. 107, 239 P. 869 (1925).

And an award cannot be reversed because of the admission of hearsay evidence. Vaughn v. Indus. Comm'n, 79 Colo. 257, 245 P. 712 (1926).

Court may not set aside or amend a finding of fact and order award amended accordingly. Indus. Comm'n v. Gen. Accident, Fire & Life Assurance Corp., 71 Colo. 115, 204 P. 338 (1922).

And judgment setting aside finding held to be error. The commission in adopting and making his own the findings of the referee, that "claimant's condition is not the result of an accidental injury within the meaning of the workmen's compensation act; that said condition is in the nature of an occupational disease", determined by necessary inference that the condition from which claimant was suffering was not caused by accident, but was caused by the pressure on his knee incident to the character of the work in which he was engaged. There being evidence to support the finding it was binding upon the court, and it was error for the court to set aside such finding and order an award of compensation. Indus. Comm'n v. Barton, 98 Colo. 51, 52 P.2d 670 (1935).

Judgment beyond court's jurisdiction. Where commission awarded monthly payments to claimant in proceeding for compensation, the court was without jurisdiction to enter judgment for the maximum sum which might thereafter accrue under the award. L. B. Cole Produce Co. v. Indus. Comm'n, 123 Colo. 278, 228 P.2d 808 (1951).

Correctness of legal conclusions matter for appellate court. Correctness of a legal conclusion drawn by the industrial commission from undisputed facts is properly a matter for the appellate court. Dorsch v. Indus. Comm'n, 185 Colo. 219, 523 P.2d 458 (1974); Gruntmeir v. Tempel & Esgar, Inc., 730 P.2d 893 (Colo. App. 1986).

Evidence supported determination by panel that claimant was not an "employee" at time of accident. Younger v. City & County of Denver, 796 P.2d 38 (Colo. App. 1990).

ALJ's determination to use an alternate method to compute claimant's average weekly wage rather than by the piecework method set forth in subsection (2)(e) was supported by substantial evidence and could not be disturbed on review where claimant's contract contemplated 10 to 12 hours per day for five days per week on a piecework basis and claimant had worked on a piecework basis for a short period of time prior to injury. Drywall Prods. v. Constuble, 832 P.2d 957 (Colo. App. 1991).

This section establishes the standard of appellate review for grants of summary judgment in workers' compensation claims. Fera v. Indus. Claim Appeals Office, 169 P.3d 231 (Colo. App. 2007).

ALJ's summary judgment order may be set aside upon review where the appellate court finds in the record a disputed issue of material fact. Fera v. Indus. Claim Appeals Office, 169 P.3d 231 (Colo. App. 2007).

Appellate court must accept ALJ's statements of undisputed facts pertaining to a claimant's request for penalties against an employer if substantial evidence in the record supports that statement of facts, but must set aside the grant of summary judgment in an employer's favor if the court determines that conflicts in the evidence are not resolved in the record or the order is not supported by applicable law. Fera v. Indus. Claim Appeals Office, 169 P.3d 231 (Colo. App. 2007).

B. Acts Not Supported by Law.

The findings of the director are binding unless set aside for one or more of the reasons named in this section. Indus. Comm'n v. London Guarantee & Accident Co., 66 Colo. 575, 185 P. 344 (1919).

For instance, that the commission exceeded its lawful power, in other words, acted without, or in excess of, its jurisdiction is one of the grounds upon which the courts are permitted to set aside awards under the workmen's compensation act. Indus. Comm'n v. Employers' Liab. Assurance Corp., 78 Colo. 267, 241 P. 729 (1925).

And where the decision of the commission is based upon improper application of the law, a district court may set aside the award. W. Cas. & Sur. Co. v. Swort, 134 Colo. 421, 306 P.2d 661 (1957); Indus. Comm'n v. Havens, 136 Colo. 111, 314 P.2d 698 (1957); Booher v. Las Animas County Sch. Dist. R-88, 30 Colo. App. 233, 491 P.2d 104 (1971).

As where it makes fact-finding contrary to uncontradicted evidence. O.P. Skaggs Co. v. Nixon, 97 Colo. 314, 50 P.2d 55 (1935).

Or where final award is revoked. Where no contention is made that a lump-sum disability award was not validly entered in the first instance, or that its propriety was contested by the state compensation insurance fund at the time it was made or thereafter, the award becomes, at the time of entry, tantamount to a final judgment and a vested right which survived the employee's death. Revocation of the award was an invalid act on the part of the commission, and its order to such effect is reversed. Schenfeld v. Shaffer, 29 Colo. App. 425, 487 P.2d 818 (1971).

C. Findings of Fact.

To sustain an award of compensation, the director must find all of the essential facts required by § 8-52-102, i.e., that employer and employee are subject to the act; that the employee was performing services in the course of his employment when an accident occurred; that the injury was caused by an accident arising out of and in the course of the employment. An absence of any one of such essential facts defeats an award. Miller v. Denver Post, Inc., 137 Colo. 61, 322 P.2d 661 (1958).

Award to be set aside when no evidence to support it. The award in a workmen's compensation case is to be treated like the verdict of a jury and set aside by the courts when there is not evidence to support it. Indus. Comm'n v. Elkas, 73 Colo. 475, 216 P. 521 (1923).

And detailed findings of fact should be made so that courts can determine whether award is supported by the facts. Prouse v. Indus. Comm'n, 69 Colo. 382, 194 P. 625 (1920); Billick v. Indus. Comm'n, 69 Colo. 471, 195 P. 114 (1921); N. Park Coal Co. v. Indus. Comm'n, 90 Colo. 500, 10 P.2d 326 (1932); Hayden Bros. Coal Corp. v. Indus. Comm'n, 90 Colo. 503, 10 P.2d 325 (1932); Duras v. Indus. Comm'n, 90 Colo. 565, 11 P.2d 213 (1932).

For otherwise court cannot say finding and awards supported by evidence. If no findings of fact are made, it is absolutely impossible for the court to say whether the award is supported by the findings or whether there is any evidence to support the findings. Hayden Bros. Coal Corp. v. Indus. Comm'n, 90 Colo. 503, 10 P.2d 325 (1932).

And award cannot be based upon speculation or conjecture. There is no explanation as to how the employee met his death. There is not evidence in the record that any of these speculative events actually did occur. Awards in compensation cases cannot be based upon speculation or conjecture. Indus. Comm'n v. London & Lancashire Indem. Co., 135 Colo. 372, 311 P.2d 705 (1957).

Just as mere inferences will not suffice to uphold an award. Vanadium Corp. of Am. v. Sargent, 134 Colo. 555, 307 P.2d 454 (1957).

Thus, imperative for court to have complete statement of facts. This section is not to be treated as without a purpose, and inasmuch as it prohibits the court from disturbing the findings of fact, it is imperative that the court have before it a sufficiently complete statement of the facts by the commission, as will enable it to render an independent conclusion as to the law to be applied. Weaver v. Indus. Comm'n, 69 Colo. 507, 194 P. 941 (1921).

For unless the commission first finds the evidentiary and ultimate facts, it is futile for the reviewing court to examine the record, for it cannot sit as a fact-finding body to ascertain facts from the testimony in the first instance, and it cannot on review determine whether the testimony is sufficient to establish facts that have not been found by the commission. Metros v. Denver Coney Island, 110 Colo. 40, 129 P.2d 911 (1942); Womack v. Indus. Comm'n, 168 Colo. 364, 451 P.2d 761 (1969).

And the sufficiency of the finding must appear upon its face. Womack v. Indus. Comm'n, 168 Colo. 364, 451 P.2d 761 (1969).

However, it is not any part of the commission's function to find that the claimant has not sustained the burden of proof of any or all of the essential elements that he must establish to entitle him to compensation. If the commission is of the opinion, after weighing the evidence, that it does prove any element of claimant's case, he should find that element as a fact, and similarly, if of the opinion that claimant has failed to prove any element of his case he should find that element not to be a fact. Metros v. Denver Coney Island, 110 Colo. 40, 129 P.2d 911 (1942).

Change of former award should contain specific findings of changed condition. The award of the commission since it changed and increased the former award, should have contained specific findings, based upon the testimony, as to a changed condition, if such was found, as well as specific findings as to error in the former findings. Because the award does not contain such specific findings, it is attacked for insufficiency, the attack being based upon numerous decisions of this court which have clearly stated that it is the duty of the commission to make sufficiently detailed findings of fact so that the courts may determine whether the order or award is supported by the facts. Nat'l Lumber & Creosoting Co. v. Kelly, 99 Colo. 442, 63 P.2d 457 (1936).

If commission fails to find specific facts cause will be remanded. In a proceeding under the workmen's compensation act, it is the duty of the commission to make sufficient specific findings of fact, and where it fails to do so, a cause which has been brought to the supreme court for review will be remanded for further findings. Olson-Hall v. Indus. Comm'n, 69 Colo. 518, 194 P. 212 (1921); Crawford v. Indus. Comm'n, 71 Colo. 378, 206 P. 1073 (1922); Berkley v. Consol. Lower Boulder Reservoir & Ditch Co., 73 Colo. 483, 216 P. 548 (1923); Indus. Comm'n v. Carpenter, 102 Colo. 22, 76 P.2d 418 (1938); Metros v. Denver Coney Island, 110 Colo. 40, 129 P.2d 911 (1942).

Unless general finding is right and conclusion is reasonable inference from evidence. An award will not be disturbed on review on the ground of insufficient findings, where the general finding is right and the conclusion is a reasonable inference from the evidence. Picardi v. Indus. Comm'n, 70 Colo. 266, 199 P. 420 (1921); Central Sur. & Ins. Corp. v. Indus. Comm'n, 94 Colo. 341, 30 P.2d 253 (1934), see Globe Indem. Co. v. Indus. Comm'n, 67 Colo. 526, 186 P. 522 (1919); Brock-Haffner Press Co. v. Indus. Comm'n, 68 Colo. 291, 187 P. 44 (1920); Prouse v. Indus. Comm'n, 69 Colo. 382, 194 P. 625 (1920); Hassell Iron Works Co. v. Indus. Comm'n, 70 Colo. 386, 201 P. 894 (1921).

If the evidence is conflicting, the commission's duty is to resolve the conflict, determine what is true and what is false, and announce the fact in accordance with his findings. Metros v. Denver Coney Island, 110 Colo. 40, 129 P.2d 911 (1942); United States Fid. & Guar. Co. v. Indus. Comm'n, 128 Colo. 68, 259 P.2d 869 (1953); Bowlus v. Indus. Comm'n, 152 Colo. 535, 383 P.2d 789 (1963); Alvin H. Watkins, Inc. v. Hamilton, 159 Colo. 257, 411 P.2d 15 (1966); Hirschfield v. Indus. Comm'n, 159 Colo. 350, 411 P.2d 776 (1966); Sena v. World of Sleep, Inc., 173 Colo. 348, 478 P.2d 671 (1970).

However, where there is no conflict in the testimony and the award is based on unwarranted inferences or improper application of the law, the court is at liberty to set aside the award. Deines Bros. v. Indus. Comm'n, 125 Colo. 258, 242 P.2d 600 (1952).

Findings held to support award. London Guarantee & Accident Co. v. Indus. Comm'n, 70 Colo. 256, 199 P. 962 (1921); Canon Reliance Coal Co. v. Indus. Comm'n, 72 Colo. 477, 211 P. 868 (1922); Columbine Laundry Co. v. Indus. Comm'n, 73 Colo. 397, 215 P. 870 (1923); Ortiz v. Indus. Comm'n, 734 P.2d 642 (Colo. App. 1987); Mtn. Meadows Nursing Ctr. v. Indus. Claim Appeals Office, 990 P.2d 1090 (Colo. App. 1999); Sanchez v. Indus. Claim Appeals Office, 2017 COA 71, 411 P.3d 245.

Findings of fact were held not to support an award denying compensation to employee kicked by horse which he was beating. Indus. Comm'n v. Cornelius, 81 Colo. 111, 253 P. 828 (1927).

Findings not supported by evidence. Gruntmeir v. Tempel & Esgar, Inc., 730 P.2d 893 (Colo. App. 1986); Hobbs v. Indus. Claim Appeals Office, 804 P.2d 210 (Colo. App. 1990).

Insufficient finding. It is not a finding of the required facts for the commission to say "that if the occasion occurred as the claimant has testified, it would not constitute a compensable accident". This is in effect but a demurrer by the commission to claimant's evidence, and is not authorized by the compensation act. Metros v. Denver Coney Island, 110 Colo. 40, 129 P.2d 911 (1942).

Error of the industrial commission in affirming an award based on findings not supported by evidence in the record requires that the award be set aside. Associated Grocers of Colo., Inc. v. Bendickson, 36 Colo. App. 239, 538 P.2d 476 (1975).

There is a clear distinction between the terms "no evidence" and "no credible evidence" and the record failed to support the finding that there was no evidence of causation regarding worker's claim to total disability benefits for occupational lung disease. Hall v. Indus. Claim Appeals Office, 757 P.2d 1132 (Colo. App. 1988).

Findings of the ALJ sufficient to permit appellate review. In concluding that claimant failed to prove that a whole person impairment rating was applicable, the ALJ adopted the physicians' opinions that claimant suffered a loss of range of motion in the upper extremity. This finding is sufficient to permit review. Walker v. Jim Fuoco Motor Co., 942 P.2d 1390 (Colo. App. 1997).

Applied in Martinez v. Indus. Claim Appeals Office, 176 P.3d 826 (Colo. App. 2007); Cabela v. Indus. Claim Appeals Office, 198 P.3d 1277 (Colo. App. 2008).