Opinion
April 2, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent Industrial Commission of Colorado.
Welborn, Dufford, Cook, Phipps & Brown, Miles C. Cortez, Jr., Denver, for petitioner.
Fred B. Dudley, Richard G. Fisher, Jr., James A. May, Denver, for respondent State Compensation Ins. Fund.
Costello & Kofoed, P.C., Eugene F. Costello, Denver, for respondent Howard Allen Kelley.
RULAND, Judge.
This is a review of an order of the Industrial Commission awarding claimant benefits under the Workmen's Compensation Act. We affirm.
Claimant is employed by petitioner, CF&I Engineers, Inc. (CF&I) and was so employed for a period of approximately ten years prior to November 11, 1970. On that date, claimant and another employee were working inside a cylindrical tank approximately 25 feet long and 13 feet in diameter with a chemical spray containing trichlorethylene (tri). Air hoses were provided for ventilation. The following day claimant developed certain symptoms and was subsequently diagnosed as suffering from hepatitis.
Claimant was treated, his condition improved, and then on August 25, 1971, claimant was again working with a chemical spray containing tri. Although claimant suffered no apparent adverse effects following this exposure, a blood test was adminstered to claimant on September 5, 1971, and it was noted that claimant's liver showed further deterioration. Claimant was then diagnosed as having chronic hepatitis.
Claimant thereafter filed a claim for benefits under the Occupational Disease Disability Act, C.R.S.1963, 81--18--1 et seq. Respondent State Compensation Insurance Fund (State Fund) is the insurer for CF&I under the Occupational Disease Disability Act; CF&I is self-insured for purposes of the Workmen's Compensation Act. State Fund took the position that claimant's condition resulted from an accident and not from an occupational disease. Following presentation of evidence, the referee entered an order dismissing State Fund from the case and awarding claimant benefits under the Workmen's Compensation Act on the basis that the exposure to tri on November 11, 1970, constituted an accident causing claimant's hepatitis. The Industrial Commission affirmed the referee's findings and order, and CF&I seeks this review.
CF&I contends that claimant's condition could not be considered as having resulted from an accident because: (1) There are no prior reported cases in the medical literature confirming that hepatitis may result from One exposure to tri; (2) claimant had been exposed to tri at various times in the course of his employment with CF&I over a period of ten years prior to November 11, 1970; (3) claimant's exposure to certain ingredients in medications prescribed for him prior to November 11, 1970, could have contributed to the condition complained of; (4) there is no evidence that claimant's exposure to tri on November 7, 1970, exceeded in amount previous exposures suffered by claimant; and (5) a co-worker of claimant was likewise exposed to tri on November 11, 1970, and suffered no adverse effects of consequence.
If a claimant is exposed to a poison covered by the Occupational Disease Disability Act resulting in a disability and the exposure is traceable to a particular time, place, and cause, such exposure constitutes an 'accident' which is covered by the Workmen's Compensation Act. Colorado Fuel & Iron Corp. v. Industrial Commission, 154 Colo. 240, 392 P.2d 174; See Denver v. Moore, 31 Colo.App. 310, 504 P.2d 367. In the case at hand, two physicians testified as to medical causation. One was a general practitioner and the other was a specialist in the field of toxicology. The summary, both physicians conceded the Possibility that claimant's exposure to tri over the ten years prior to November 11, 1970, or the exposure to the ingredients in the prescribed medications, might have contributed to his condition. Likewise, both physicians conceded that there were no prior cases to their knowledge where one exposure to tri caused hepatitis. Nevertheless, both physicians testified that, in their opinion, the one exposure on November 11, 1970 (being an exposure in a confined area), was the initial Toxic exposure which caused claimant's hepatitis. The record does not indicate that claimant was exposed to tri in a small confined area on any occasion prior to November 11, 1970.
On this state of the record, the question is not whether we agree with the Commission's findings, but whether there is any evidence, either direct or by reasonable inference which will support those findings. See University of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423. There being competent evidence in the record to support the Commission's findings, its order must be affirmed. Industrial Commission v. Allen, 28 Colo.App. 546, 478 P.2d 702.
CF&I contends that since claimant filed his claim under the Occupational Disease Disability Act, State Fund had the burden of demonstrating that claimant's condition resulted from an accident, and it asserts that the evidence was insufficient to sustain that burden. Both physicians who testified were called by State Fund, and the Commission based its findings on their testimony. It is evident that the Commission found that State Fund had sustained its burden. The weight and sufficiency of the evidence and conclusions to be drawn therefrom are matters within the discretion of the Commission, Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48, and finding no abuse of that discretion, we affirm.
The order is affirmed.
SILVERSTEIN, C.J., and SMITH, J., concur.