Opinion
Feb. 9, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 121
Sheldon, Bayer, McLean & Glasman, Raymond G. Carey, Jr., James T. Bayer, Denver, for petitioners.
Atler, Haligman & Atler, Edward Haligman, Denver, for respondent Eugene Marion Babbitt.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent The Industrial Commission of the State of Colorado.
PIERCE, Judge.
This is an appeal from a final award entered by the respondent Industrial Commission of the State of Colorado, hereinafter referred to as the 'Commission,' granting respondent Eugene Marion Babbitt, hereinafter referred to as 'Babbitt' or 'claimant,' workmen's compensation benefits for injuries he allegedly suffered in the course of his employment with petitioner Uniroyal K-Mart Tire Service, #235, hereinafter referred to as the 'employer' or 'Uniroyal.' Petitioner Reliance Insurance Company is the insurance carrier for the employer.
The essential facts of this case are as follows: Prior to his employment with Uniroyal, Babbitt had back problems which necessitated a spinal fusion in 1951. From 1951 to 1968, he had no recurring back problems and during that period of time did construction work involving heavy lifting, without any adverse effects. Babbitt entered employment with Uniroyal in 1966, and in his application for employment advised his employer of his previous back injury in 1951. Claimant worked in three of the employer's stores between 1966 and the early part of 1968, during which time he was able to perform his work without any adverse effects to his back. In January of 1968, he was promoted to manager of one of the employer's new stores. Sometime in August of 1968, Babbitt did a large portion of the unloading of approximately 250 to 300 tires delivered to the store. After completing this task, he felt extremely tired and had a stiffness in his back and legs, necessitating leaving work early. It appeared to the other employees, before he left, that he was under great pain and distress and he reported to the bookkeeper that his back was hurting. He immediately sought and received medical treatment from his personal physician, who in turn referred him to a neurologist. Babbitt was able to return to work the following day and continued to work until November, 1968, during which time he continued to perform lifting functions, but exhibited frequent occasions of back pain after doing extensive lifting.
On November 18, 1968, while Babbitt was unloading and stacking a load of merchandise, he experienced pain in his back and legs. He testified, 'I could hardly manuever my legs and stand up.' Babbitt immediately left work and sought medical attention. On this occasion, claimant missed several days of employment, but then found he was able to return to work, whereupon he continued at his employment until December 4, 1968, when it became impossible for him to walk, resulting in his hospitalization. On December 13, 1968, he underwent a spinal fusion operation.
I.
Petitioners first claim that the Commission exceeded its authority in awarding compensation to claimant on the ground that Babbitt failed to sustain his burden of proof in that he failed to establish the particular time, place, or cause of his alleged injury as required by the Workmen's Compensation Act and the cases construing it, citing, among other authorities, Prouse v. Industrial Commission, 69 Colo. 382, 194 P. 625. The Prouse case indicates that an accident, in order to be compensable, must be traceable to a definite time, place, and cause, and that it must be unexpected. The burden of proving these requirements rests with the claimant. Industrial Commission v. Havens, 136 Colo. 111, 314 P.2d 698.
However, in Martin Marietta Corp. v. Faulk, 158 Colo. 441, 407 P.2d 348, the Supreme Court determined that although an injury had to be traceable to a definite cause, time, and place, '(t)his was done in the instant case by the testimony as to the causal connection between the type of work, the date the pain began, and the place of employment.'
Measured by this criterion, the testimony adduced in the hearing before the referee was sufficient to make a logical inference that the extensive lifting done by Babbitt while in the course of his employment on November 18, 1968, within a reasonable probability, was the proximate cause of his disability and was adequately certain as to time and place.
II.
Uniroyal further contends that Babbitt could not have suffered an 'accident' within the meaning of the Workmen's Compensation Act, because the injury of November 18, 1968 was not 'unexpected,' and in fact was characterized by the Commission in its findings of fact to be a 'recurring' injury.
The Workmen's Compensation Act currently defines 'accident' as follows:
'(1) The term 'accident,' as used in this chapter, shall mean an unforeseen event, occurring without the will or design of the person whose mere act causes it; an unexpected, unusual, or undesigned occurrence; or the effect of an unknown cause, or, the cause being known, an unprecedented consequence of it.' 1965 Perm.Supp., C.R.S.1963, 81--2--9(1).
The record adequately supports the Commission's finding that there was an 'accident' resulting in a compensable injury within the meaning of the Act, and that the injury was the 'unexpected result of his normal working activities.' The statement that the injury had 'recurred' does not take the accident from under the coverage of the statute. Babbitt sustained an injury in August of 1968, but this injury did not result in a loss of working time that would make it compensable under the Act. There is no evidence that after the August difficulty Babbitt's physicians advised against his return to work.
We cannot say, as a matter of law, nor did the Commission find, that Babbitt should have known that his condition would deteriorate. In City of Boulder v. Payne, 162 Colo. 345, 426 P.2d 194, the Supreme Court stated:
'Accident is the cause and Injury is the effect. It does not follow in every instance that the two occur simultaneously. At least, in many instances, the total or ultimate effect is not immediately apparent. The slow, progressive development of the ultimate effect in the instant case was neither apparent to several doctors who treated claimant nor to the claimant. Surely, it was not contemplated by the legislature that a workman have greater medical perception than a physician.' (Emphasis theirs)
III.
Petitioners also contend that the pre-existing spinal injury Babbitt suffered in 1951, for which he was duly compensated, should either preclude his award in this case, or in the alternative, should result in an apportionment between the present injury and that part of the present injury attributable to the earlier incident.
Ohio Casualty Insurance Co. v. Industrial Commission, 115 Colo. 355, 173 P.2d 888, is cited by petitioners in support of their argument. Ohio Casualty, however, is distinguishable from the case at hand. In that case, the referee was unable to say how much of claimant's disability was due to the previous injury and to what extent the old injury was aggravated. Here, the Commission's findings are sufficiently specific, adequately supported by the record, and support a reasonable inference that no part of Babbitt's present injury was attributable to the 1951 injury.
The law is now clear that a prior injury from which there has been a recovery does not preclude compensation for a later similar injury. C.R.S.1963, 81--8--2(2); Colorado Fuel and Iron Corp. v. Rhodes, 166 Colo. 82, 441 P.2d 652; Colorado Fuel and Iron Corp. v. Industrial Commission, 129 Colo. 353, 269 P.2d 1070. The findings of the Industrial Commission are, in this case, adequately supported by the evidence or reasonable inference drawn therefrom, and are therefore conclusive upon review. Passini v. Industrial Commission, 64 Colo. 349, 171 P. 369.
We find petitioners' other assignments of error to be without merit.
Judgment is affirmed.
SILVERSTEIN, C.J., and DUFFORD, J., concur.