Opinion
Nov. 12, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 425
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent the Industrial Commission.
Lewis E. Eagan, Charles P. Miller, Aurora, for petitioner.
Dosh, DeMoulin, Anderson & Campbell, William P. DeMoulin, Denver, for respondents Mary Halter, d/b/a Coronado Apartments, and Fireman's Fund Ins. Co.
STERNBERG, Judge.
This is a petition for review by an employee from an order of the Industrial Commission denying her claim for workmen's compensation benefits. We affirm.
The claimant has undergone a series of amputations of her left leg, commencing with removal of toes and concluding with removal of the leg several inches below the hip. Her claim was based upon an allegation that she had stubbed her toes in the course of employment, that this trauma exacerbated a pre-existing vascular insufficiency resulting in a gangrenous condition necessitating amputation, and that the injury was thus compensable.
There can be no doubt that a claim based on aggravation of a pre-existing condition is covered by the Workmen's Compensation Act. Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448. Nor is there any dispute that the causal connection between the alleged trauma and the injury must be established by only a reasonable probability, and not with a reasonable 'medical certainty.' Ringsby Truck Lines, Inc., v. Industrial Commission, 30 Colo.App. 224, 491 P.2d 106. However, in this case the referee and commission, based upon disputed evidence, concluded that the traumatic incident was not causally related to the necessity for the subsequent amputations.
The evidence which the referee and commission found persuasive was that the claimant did not report the toe stubbing incident to her physician when he examined her prior to hospitalization; that the claimant's pre-existing blood disease, in view of her age and medical history, could well have been a progressive condition culminating in the amputations; that she has a similar condition in the other leg; and that the drugs she had been taking for her medical problems could have aggravated the pre-existing vascular problem to such a degree that the gangrenous condition resulted, requiring that the amputations be performed.
Conversely, there was evidence in the record from the claimant and lay witnesses that she had stubbed her toe, and that she neglected to report this to her treating physician because of the concern she had over the possible need for amputations. There was also medical testimony to the effect that it was possible that stubbing of the toe may have contributed to the tragic culmination of this situation.
Nevertheless, since there was substantial evidence in the record upon which the referee and commission could base their findings, and in particular since there were possible causes of the condition which necessitated the amputations other than trauma, this court has no power to disturb the findings of the commission. University of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423. This court cannot usurp the functions of the Industrial Commission, weigh the evidence, and conclude that were we in its position we would have reached a contrary conclusion. Hatterman v. Industrial Commission, 171 Colo. 370, 467 P.2d 820.
Order affirmed.
ENOCH and SMITH, JJ., concur.