Opinion
As Modified on Denial of Rehearing Sept. 12, 1972.
Larry E. Lawler, Wheat Ridge, for respondent James Delbert Henry.
Hemminger, McKendree, Vamos & Elliott, P.C., James E. Elliott, Jr., Denver, for petitioners.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for respondent Industrial Commission of Colorado.
Page 430
COYTE, Judge.
James Henry was involved in a truck accident during the course of his employment on September 9, 1969. Immediately following the accident, he was treated for soreness in his right shoulder and the right anterior portion of his neck. Although he continued to experience soreness in his neck and right shoulder, he returned to work as a truck driver after three weeks. Subsequently, he began to experience pain in his left shoulder and arm, and, in June of 1970, the pain became severe. He visited a doctor in August 1970, was thereafter hospitalized, and a herniated disc was removed and a bone fusion was performed on September 4, 1970. On September 17, 1970, Dr. Litvak, his surgeon, recommended that he return to work. He did so but was unable to continue due to soreness in his arm and shoulder.
At the first hearing on November 12, 1970, Mr. Henry testified that Dr. Litvak had told him that he could not work at all at that time and had advised him to seek rehabilitation because he would not be able to do heavy work again. After his final evaluation of Mr. Henry on December 11, 1970, Dr. Litvak reported that Mr. Henry on this date had reached his point of maximum improvement. The Commission found claimant's symptoms and resulting surgery and disability were caused by the industrial accident of September 9, 1969.
The employer and its insurer appeal the final order of the Industrial Commission awarding temporary total disability and permanent partial disability benefits to Mr. Henry. We affirm.
Petitioners assert that the evidence is insufficient to support the finding of a probable causal connection between the accident and the injury. They also contend, in the alternative, that the evidence is insufficient to support the finding of the termination date of December 11, 1970, for the temporary total disability.
All that is necessary to sustain a finding of causal connection is evidence which would indicate with reasonable probability that the disability resulted from, or was aggravated or precipitated by, the accident. Colorado Fuel and Iron Corp. v. Industrial Commission, 129 Colo. 353, 269 P.2d 1070; Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293; Ringsby Truck Lines, Inc. v. Industrial Commission, Colo.App., 491 P.2d 106.
Testimony of two doctors, who had examined Mr. Henry in December of 1970 at the request of petitioners, indicated a possibility of causal relationship between the accident and the injury. Dr. Litvak testified that:
'According to the information available to me from the patient, and according to his history, there being no other history of any trauma or any other feature which might have produced this problem, I would say that it is probable, that he probably suffered the disc repture as a result of this injury . . .. It is not outside the realm of reason for a weakness to have occurred in the interspace allowing a rupture possibly to occur at a later time . . ..'
On redirect he further testified that it was reasonable to believe that the injury could be due to the accident and that, according to the information available to him there was a probability that it was related. Mr. Henry testified that he had no difficulty with his neck or arms prior to the accident and that after the accident he was continuously stiff and sore, originally in the neck and right shoulder and later in the left shoulder and arm. The pain became severe in June of 1970 and got progressively worse.
The existence of a causal connection between the accident and the injury was an ultimate question of fact to be determined by the trier of facts from the evidence as a whole. Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3; Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638. The finding by the Commission is supported by competent evidence and is therefore binding upon this court on review. In re Crandall v. Watson-Wilson Transportation System Inc., 171 Colo. 329, 467 P.2d 48; United Utilities and Specialties Corp. v. Industrial Commission,
Petitioners also assert that there was insufficient evidence to support the period of temporary total disability found by the Commission. After an examination on September 17, 1970, Dr. Litvak reported by letter that Mr. Henry was free to return to his usual occupational duties. Mr. Henry testified that he then attempted to return to work for a different employer but due to the pain and soreness was only able to work a total of eight days. On December 11, 1970, Dr. Litvak examined Mr. Henry and reported in his final disability evaluation that he had reached his point of maximum improvement. His period of temporary total diability was found by the Commission to be from August 31, 1970, through and including December 10, 1970.
Petitioners urge that, since the doctor told claimant he could return to work on September 17th and since he in fact did then go to work for a period of eight days, his temporary total disability should cease on September 17, 1970. Medical opinions are not the sole determinative factors, and the Commission must consider all the circumstances in making its determination. Vanadium Corp. v. Sargent, 134 Colo. 555, 307 P.2d 454; Ringsby Truck Lines, Inc. v. Industrial Commission, Supra. There is evidence to support the finding that, regardless of some work in the interim, temporary total disability continued until December 11, 1970, the date on which he was determined to have reached maximum improvement, and the finding is therefore conclusive on review. Morrison v. Clayton Coal Co., 116 Colo. 501, 181 P.2d 1011. Additionally, the petitioners are not entitled to credit for the time Mr. Henry worked for a different employer during his period of temporary total disability. New York Indemnity Co. v. Industrial Commission, 86 Colo. 364, 281 P. 740; See also A. Larson, The Law of Workmen's Compensation s 57.46.
Order affirmed.
SILVERSTEIN, C.J., and PIERCE, J., concur.