Opinion
No. 83SC242 No. 83SC245
Decided May 29, 1984.
Certiorari to the Colorado Court of Appeals
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Timothy Arnold, First Assistant Attorney General, William Levis, Assistant Attorney General, Kathryn J. Aragon, Assistant Attorney General, for Industrial Commission of the State of Colorado.
Robert A. Weinberger, Knapp and Lee, P.C., for C H Transportation Co., Inc. and Vigilant Insurance Co.
Peter Watson, Christina M. Habas, Watson, Nathan Bremer, P.C., for respondent Helm.
Robert A. Weinberger, Knapp and Lee, P.C, for C H Transportation Co, Inc. and Vigilant Insurance Company.
Duane Woodard, Attorney General, Charles B. Howe, Chief Deputy Attorney General, Richard H. Forman, Solicitor General, Timothy Arnold, First Assistant Attorney General, William Levis, Assistant Attorney General, Kathryn J. Aragon, Assistant Attorney General, for Industrial Commission of the State of Colorado.
Peter Watson, Christina M. Habas, Watson, Nathan Bremer, P.C, for respondent Helm.
We granted certiorari to review an unpublished decision of the Court of Appeals which reversed the decision of the Industrial Commission (commission) and remanded this worker's compensation case for affirmation of the referee's findings. The Court of Appeals ruled that the commission used an incorrect standard of review to set aside the referee's finding that the claimant's work-related injury caused his disability. We vacate the Court of Appeals judgment and remand the case, directing that it be returned to the referee for further findings.
On December 11, 1978, Sammie E. Helm, the claimant, fell against a machine at his work-place, injuring his head and right shoulder. The claimant remained absent from work for several days afterwards because of flu-like symptoms. On December 18, 1978, complaining of stiffness in his shoulder, the claimant consulted Dr. Koller, his family physician, who tentatively diagnosed the claimant as suffering from biceps tendonitis and prescribed treatment appropriate to that condition. When the claimant's condition failed to improve, Dr. Koller referred him to Dr. Maruyama, who examined the claimant on December 21, 1978, and diagnosed a contusion-strain of the right shoulder. Dr. Maruyama immobilized the claimant's shoulder in a sling and told him to perform some gentle exercises and return in two weeks for another examination. Upon the claimant's return on January 4, 1979, X-rays revealed that he was suffering from septic arthritis of the shoulder joint. Because of his toxic condition, the claimant was hospitalized immediately, and Dr. Stedman drained and irrigated two large abscesses in the area of the claimant's shoulder. The claimant remained hospitalized for ten days. Since the operation, the claimant is unable to move his right shoulder joint and motion of the right elbow is somewhat impaired. On July 2, 1979, the claimant returned to work, but he stopped working on December 10, 1979 because of the pain in his shoulder and arm.
Dr. Stedman reported that the claimant's septic arthritis was caused by transient septicemia and that when the claimant injured his shoulder, the shoulder joint became more susceptible to infection. According to Dr. Stedman's report, the septic arthritis would have been very difficult to diagnose at the time of the injury because there was no reason to believe that an infection was present. Other medical reports in the record state that the claimant's injury masked the presence of the infection, making early diagnosis difficult, and that the claimant's disability was due to the injury and the infection. One report indicates that the injury had little, if any, bearing on the infection and subsequent complications. According to many of the reports, the claimant's recovery was impeded by his refusal to cooperate fully in managing his diabetes which first was diagnosed in 1970.
After a hearing, the referee, on October 3, 1981, made the following findings:
1. The claimant was injured in a compensable accident on December 11, 1978 . . . .
2. The claimant's injury was to his right shoulder.
3. The claimant was initially treated by a Dr. Koller and was subsequently referred to Drs. Maruyama, Stedman and Rowland.
4. Claimant's condition was originally diagnosed as a contusion of the right shoulder.
5. Following this diagnosis the claimant developed an infection in the right shoulder and was subsequently hospitalized for treatment of this infection which hospitalization was paid for by respondents.
6. That claimant was a known diabetic and was diagnosed as being a diabetic by the treating physician Dr. Stedman and Dr. Rowland.
7. That the claimant's injuries superimposed upon his diabetic condition has caused a complete loss of the use of his right arm at the shoulder.
8. That because of the loss of his right arm at the shoulder the claimant is completely unemployable and is therefore permanently and totally disabled. . . .
The referee ordered C H Transportation Co., Inc. (the employer) and Vigilant Insurance Co. (the carrier) to pay the claimant temporary and permanent total disability benefits. The employer and the carrier petitioned the commission for review. The commission, on August 30, 1982, set aside the seventh finding of the referee — that of causation — stating: "no doctor says that the shoulder infection or the septic arthritis were caused or aggravated by the injury on the job." The commission labeled the referee's finding of causation an "ultimate finding" and held that "the weight of the evidence establishes only that the shoulder injury caused only a 10% impairment of the arm at the shoulder. The referee erred in attributing the entirety of the impairment and resulting permanent total disability to the injury."
The commission's conclusion is based on a medical report from Dr. Rowland which states: "It is my opinion that the injury had little if any, bearing on [the septic arthritis and complications] . . . . Assuming Mr. Helm had sustained a rotator cuff injury to the right shoulder as a result of his accident, I would have anticipated a permanent disability of 5 to 10%. I assume you understand that these last comments are speculative and I am unable to give a precise percentage that should be apportioned to the injury and to the infection and its sequel."
The claimant appealed, and the Court of Appeals reversed the commission's decision, remanding the case for affirmation of the referee's ruling. The court held that the referee's finding of causation was one of evidentiary fact and that such findings are binding on the commission unless they lack substantial support in the record. Consequently, the court determined that the commission erred in setting aside the referee's finding. The commission, employer, and carrier sought certiorari review by this court. We granted certiorari to determine whether the commission applied the proper standard of review in setting aside the referee's finding of causation.
I.
The standard of review at issue is set out in Ch. 86, sec. 2, § 8-53-106(2), 1981 Colo. Sess. Laws 476, 476-477 (the 1981 amendment), which provides:
8-53-106. Review — petition — notice — clerical mistakes. (2)(a) The commission, upon referral of a case to it by the director or upon a petition being filed with it to review the director's or a referee's supplemental award, shall review the entire record transmitted by the director in said case and shall enter its award thereon. . . .
(b) The findings of evidentiary fact, as distinguished from ultimate conclusions of fact, made by the director or referee shall not be set aside by the commission on review of the director's or referee's decision unless the findings of evidentiary fact are contrary to the weight of the evidence. The commission may remand the case to the director or referee for such further proceedings as it may direct, or it may affirm, set aside, or modify the order or any sanction or relief entered therein, in conformity with the facts and the law.[]
The General Assembly, effective July 1, 1983, repealed and reenacted Article 53 of title 8, C.R.S. with amendments. The current standard of review, set out in § 8-53-111(7), 3 C.R.S. (Supp. 1983), provides: "The commission may reverse, remand, or affirm any order [entered by the director or hearing officer] . . . . If the findings of evidentiary fact entered by the director or hearing officer are supported by substantial evidence, they shall not be altered by the commission."
Prior to the 1981 amendment to section 8-53-106(2), 3 C.R.S. (1973), the commission had the authority to review the record transmitted by the director de novo and make evidentiary findings of fact independent of those of the referee. The 1981 amendment did not abolish all fact-finding authority of the commission, but it prevents the commission from independently making findings of evidentiary facts when the evidentiary facts found by the referee are not contrary to the weight of the evidence. The commission remains free to make independent "ultimate conclusions of fact." The amendment governs all cases decided by the commission after its effective date, May 26, 1981. Nolan v. Industrial Commission, 664 P.2d 253 (Colo.App. 1982).
The 1981 amendment applies different standards for the commission's review of evidentiary facts and ultimate conclusions of fact. See R R Well Service Co. v. Industrial Commission, 658 P.2d 1389 (Colo.App. 1983). This court distinguished evidentiary from ultimate facts in Lee v. State Board of Dental Examiners, 654 P.2d 839 (Colo. 1982), where we stated:
This ultimate-evidentiary distinction is identical to that in § 24-4-105(15)(b), 10 C.R.S. (1982) of the State Administrative Procedure Act: "The findings of evidentiary fact, as distinguished from ultimate conclusions of fact, made by the hearing officer shall not be set aside by the agency on review of the hearing officer's initial decision unless such findings of evidentiary fact are contrary to the weight of the evidence . . . . "
Findings of ultimate fact, as distinguished from raw evidentiary fact, involve a conclusion of law, or at least a determination of a mixed question of law and fact, and settle the rights and liabilities of the parties. An ultimate finding of fact will be set aside by a reviewing court only if, assuming there is evidence to support the finding, it is "contrary to law," . . . .
Id. at 844 (citations omitted). See also Ricci v. Davis, 627 P.2d 1111 (Colo. 1981); Blair v. Lovett, 196 Colo. 118, 582 P.2d 668 (1978). In Lee, we held that whether the standard of dental care in Denver includes the retaking of X-rays under certain circumstances is an evidentiary fact; however, whether a violation of that standard of care falls within the statutory category of "gross incompetence" is an ultimate fact.
The parties to the instant case imply in their briefs that the question before us is whether, as a matter of law, causation is an ultimate or evidentiary fact. The claimant asserts, relying on Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983), that causation in the context of a worker's compensation claim is an evidentiary fact which is binding on review. The commission, the employer, and the carrier argue that causation is an ultimate fact which is within the commission's discretion on review. The Court of Appeals in this case determined, on the basis of Savio, that causation is an evidentiary fact.
We do not believe that causation is necessarily an ultimate or an evidentiary factual determination. Under the standard enunciated in Lee, causation may in certain circumstances be an ultimate fact and in others an evidentiary fact. Whether an injury "caused" a disability, in the sense that the injury had a particular role in the chain of events leading to the disability, is a question of evidentiary fact, to be determined according to the weight and sufficiency of the evidence. Whether an evidentiary fact of causation justifies the legal conclusion that a disability was "proximately caused" — within the meaning of section 8-52-102(1)(c), 3 C.R.S. (Supp. 1983) — by a work-related injury is an ultimate fact, i.e., a question of statutory interpretation.
Section 8-52-102(1)(c) states: "The right to the compensation provided for in articles 40 to 54 of this title, in lieu of any other liability to any person for any personal injury resulting therefrom, shall obtain in all cases where the following conditions occur: . . . (c) Where the injury or death is proximately caused by an injury or occupational disease arising out of and in the course of his employment and is not intentionally self-inflicted." (emphasis added).
Technically every case involves the ultimate question of proximate causation. As a practical matter, however, the evidentiary findings — if upheld by the commission — will often place the ultimate fact of proximate causation beyond dispute.
II.
The referee's finding in this case, that "the claimant's injuries superimposed upon his diabetic condition has caused a complete loss of the use of his right arm at the shoulder," is ambiguous. It is impossible to tell whether the "injuries" referred to include only the injury directly attributable to the claimant's fall, the injury attributable to his infection, or both. Whether the finding was meant to imply a causal link between the fall and the infection is unclear. If the finding is read as a statement that the claimant's work-related injury was the direct cause of his infection and disability, then it is an evidentiary finding which may be set aside by the commission if it is contrary to the weight of the evidence. Alternatively, the referee's finding may be read to assume certain evidentiary facts — that the claimant's work-related injury masked the infection, preventing early diagnosis and treatment; that the injury made the shoulder more susceptible to infection; or both — and to conclude that the injury was the legal cause of the disability. So interpreted, the finding is one of ultimate fact, reviewable as a conclusion of law by the commission and by the appellate courts.
In Colorado Fuel Iron Corp. v. Industrial Comm., 151 Colo. 18, 379 P.2d 153 (1962), this court held that a work-related injury which aggravates a pre-existing condition is the legal cause of whatever disability results from such aggravation. We have never considered specifically whether an injury which interferes with the prompt diagnosis and treatment of a separate condition, or makes a claimant more susceptible to a subsequent infection, is the legal cause of a resulting disability. But see Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622 (1970) (upholding a finding of causation where, after a fall on an icy sidewalk, the claimant's leg would not have been fractured but for a weakening of the bone by a prior work-related fracture).
Given the ambiguity of the finding at issue, it is impossible to determine whether the commission applied the correct standard of review. We therefore vacate the judgment of the Court of Appeals and remand this case with directions that it be returned to the commission for remand to the referee for clarification of the existing findings and addition of such findings as may be necessary or appropriate.
Judgment vacated and case remanded.
JUSTICE QUINN specially concurs.
JUSTICE NEIGHBORS specially concurs, and JUSTICE ROVIRA joins in the special concurrence.