Opinion
No. 74-141
Decided October 30, 1974. Rehearing denied November 19, 1974. Certiorari granted December 23, 1974.
Following surgery for removal of the left and right epididymides and the left testicle, workmen's compensation claimant was found to have sustained a 1% permanent partial disability, and employer and its insurer sought review.
Affirmed
1. WORKMEN'S COMPENSATION — Surgical Removal — Left Testicle — Evidence Supports — Minimal Permanent Partial Disability. In workmen's compensation proceeding relative to industrial injury that resulted in the surgical removal of the left and right epididymides and of the left testicle, the claimant's statement about fear of lifting and the physician's reference to the emotional impact of the operation upon claimant constitute sufficient evidence upon which the referee and the Industrial Commission could conclude that the claimant did sustain a minimal 1% permanent partial disability.
2. Erroneous Conclusion — Claimant "Impotent" — Reality — "Improcreant" — Error Insignificant. Where in workmen's compensation proceeding, the referee erroneously concluded that surgery had left the claimant "impotent" when in reality the evidence showed him to be "improcreant," either condition represents a loss of physical function which detracts from the former efficiency of the body, and thus, such error is insignificant and one which should be disregarded.
Review of Order from Industrial Commission of the State of Colorado
Francis L. Bury, James A. May, Robert S. Ferguson, for petitioners.
Tom W. Armour, for respondent Remijio Arellano.
John P. Moore, Attorney General, John P. Bush, Deputy Attorney General, Peter L. Dye, Assistant Attorney General, for respondent The Industrial Commission of Colorado.
This is a petition for review by an employer and its insurance carrier from an order of the Industrial Commission finding the claimant to have sustained a 1% permanent partial disability. We affirm.
The claimant's work required him to unload a railroad boxcar. In the course of this employment he lifted and carried boxes of varying weights, some being as heavy as "a little over 50 pounds." The only medical testimony in the record was that this physical exertion on the day of the injury aggravated a pre-existing groin infection known as epididymitis. The epididymitis developed into acute orchitis and caused necrosis of the left testicle. Surgery followed for removal of the left and right epididymides and of the left testicle.
No question is raised in this appeal regarding the casual relationship between the employment and the injury resulting in surgery. Rather, the employer contends that there is insufficient evidence in the record to support the finding that the injury left the claimant with any permanent partial disability.
The statute, 1971 Perm. Supp., C.R.S. 1963, 81-12-9(1)(b), requires that:
"In determining permanent partial disability, the director shall ascertain in terms of percentage the extent of general permanent disability which the accident has caused, taking into consideration not only the manifest weight of the evidence, but the general physical condition and mental training, ability, former employment, and education of the injured employee . . . . "
The relevant testimony from the claimant on the issue of permanent partial disability is as follows:
"Q. Since you have gone back to . . . work .. are you lifting heavy objects now?"
"A. I haven't tried. I"M afraid to try."
When the treating physician was asked if the claimant had "suffered any physical functional impairment as the result of his surgery and infection aggravated by trauma," he replied:
"Well, I haven't had an opportunity to examine him since he healed up. All I know is he has one less testicle, and I am not sure that would be of any consequence other than how he feels about it, you know, from an emotional standpoint." (emphasis supplied)
This court's interpretation of workmen's compensation laws is governed by certain well established principles. First "such statutes are to be liberally construed to accomplish the beneficent social and protective purposes of such enactments." University of Denver v. Industrial Commission, 138 Colo. 505, 335 P.2d 292. It has also been stated that:
"The reviewing court will not ordinarily weigh the evidence nor substitute its judgment for that of the commission on findings of fact or choices between conflicting testimony or inferences, even when it is convinced that the weight of the evidence is contrary to the commission's findings. It is the commission's function to weigh the evidence and make findings on questions of fact, which includes such matters as the . . . extent of disability . . . . "
3 A. Larson, Workers' Compensation Law § 80.20; Colorado Fuel Iron Corp. v. Industrial Commission, 151 Colo. 18, 379 P.2d 153. Additionally, as stated in Wierman v. Tunnell, 108 Colo. 544, 120 P.2d 638:
"The weight to be given to such testimony was a matter for the commission, the members of which, because of their experience in this field, have developed expert knowledge of the problems involved, which makes them competent to evaluate evidence in cases of this character."
In London Guarantee Accident Co. v. Industrial Commission, 70 Colo. 256, 199 P. 962, the court affirmed an award of disability based upon injury to the male generative organ stating that:
"'The term "disability" is not restricted to such disability as impairs present earning power at the particular occupation, but embraces any loss of physical function which detracts from the former efficiency of the body or its members in the ordinary pursuits of life.'" (emphasis supplied) While the injury sustained by the claimant in London was more severe than that in the instant case, the holding of the court in that case is, nevertheless, significant here.
[1] Hence, we conclude that the claimant's statement about fear of lifting, and the physician's reference to the emotional impact constitute sufficient evidence upon which the referee and Commission could conclude that this man did sustain the minimal 1% permanent partial disability.
[2] The employer also urges as grounds for reversal the conclusion of the referee that the bilateral removal of the epididymides left the claimant "impotent" when in reality the evidence showed him to be "improcreant." Either condition represents a loss of physical function which detracts from the former efficiency of the body, and thus, we hold this error to be insignificant and one which should be disregarded. 1971 Perm. Supp., C.R.S. 1963, 81-14-14.
Order affirmed.
JUDGE RULAND concurs.
JUDGE VAN CISE dissents.