*1 BACA, Wise, Richard and Pe Mike L. J. Nims, individually and as members
ter Commission
of the Industrial Colorado; The Industrial Com
State Colorado;
mission State of McGrath, Director, Division of
Charles Co., Inc.;
Labor; Transportation & HC Company, Vigilant Peti Insurance
tioners, HELM, Respondent. E.
Sammie CO.,
C & H TRANSPORTATION INC. Company; Vigilant Insurance Commission of the State of
Industrial
Colorado; Baca, Mike L. Richard J. Nims,
Wise, individually and Peter
as members the Industrial Commis Colorado;
sion State of McGrath, Director, Division of
Charles
Labor, Petitioners, HELM, Respondent. E.
Sammie 83SC242,
Nos. 83SC245. Colorado,
Supreme Court of
En Banc.
May 29, 1984. Gen., Woodard, Atty.
Duane Charles B. Howe, Gen., Deputy Chief Atty. Richard H. Forman, Gen., Arnold, Timothy Sol. First Gen., Levis, Atty. Kathryn Asst. William J. Gen., Denver, Aragon, Attys. Asst. In- dustrial Com’n of the Colorado. A. Weinberger, Knapp Robert & P.C., Denver, Transp. for C & H Inc. Vigilant Ins. Co. Habas, Watson, Peter M. Wat- Christina P.C., son, Bremer, Denver, Nathan & respondent Helm.
DUBOFSKY, Justice. granted
We certiorari review an un- published decision which reversed the of the Industri- decision *2 (commission) very arthritis would been and remanded have difficult to al Commission compensation case for affir- diagnose this worker’s time of the injury because findings. The the referee’s mation of there was no reason to believe that an that the commission ruled present. infection was Other medical re- standard of review to set used an incorrect ports in the record state that the claimant’s finding that the claim- aside the referee’s injury presence of masked the the infec- work-related caused his disabil- ant’s tion, difficult, making early diagnosis and Appeals judg- ity. We vacate the Court that the claimant’s was due to the case, directing remand the that it ment and report and indicates infection. One to the referee for further find- be returned little, any, bearing that the had on ings. complications. subsequent the infection and 11, 1978, Helm, On December Sammie E. According many reports, claimant, against fell a machine at his recovery impeded by claimant’s his right work-place, injuring his head and cooperate fully managing refusal his The claimant remained absent shoulder. diagnosed in 1970. diabetes which first was days afterwards be- from work for several referee, hearing, After a on October symptoms. December cause of flu-like On 3, 1981, findings: following made the 18, 1978, complaining of stiffness in his injured 1. The claimant was in a com- Roller, shoulder, the claimant consulted Dr. 11, pensable accident on December family physician, tentatively diag- who his 1978.... suffering claimant as from nosed the bi- 2. The claimant’s was to his ceps prescribed and treatment tendonitis right shoulder. appropriate to that condition. When the initially 3. The claimant was treated improve, Dr. claimant’s condition failed to subsequently a Dr. Roller and was Maruyama, him who Roller referred to Dr. Maruyama, referred to Drs. Stedman and 21, examined the claimant on December Rowland. diagnosed a and contusion-strain right Maruyama shoulder. Dr. immobi- originally 4. Claimant’s condition was sling lized the claimant’s shoulder in a and diagnosed right as contusion perform gentle told him to some exercises shoulder. another exami- return two weeks for Following diagnosis the claim- this Upon nation. the claimant’s return on Jan- right developed an infection ant 4, 1979, uary X-rays revealed that he was subsequently hospital- shoulder and was suffering septic arthritis of shoul- ized for treatment of this infection which condition, joint. der Because of his toxic respon- hospitalization paid hospitalized immediately, the claimant was dents. irrigated and Dr. Stedman drained and two 6. That claimant was a known diabet- the claim- large abscesses the area of being a diagnosed ic and was diabetic remained ant’s shoulder. The claimant Dr. treating physician Stedman opera- hospitalized days. for ten Since the and Dr. Rowland. tion, the claimant is unable to move his super- injuries 7. That the claimant’s right joint and motion of the shoulder imposed upon his condition has diabetic impaired. July elbow is somewhat On of his complete loss of the use caused work, the claimant returned to but he right arm at the shoulder. working stopped on December 1979 be- of his 8. That because of the loss pain cause of the in his shoulder and arm. right arm at the shoulder the claimant reported claimant’s Dr. Stedman completely unemployable and is there- transient septic arthritis was totally dis- permanently fore septicemia the claimant in- when abled. ... shoulder, jured joint the shoulder be- his Transporta- H The referee ordered C & susceptible Ac- came more to infection. (the Vigilant employer) and cording Stedman’s-report, septic tion Inc. to Dr. (the carrier) pay petition—no- Insurance Co. the claim- 8-53-106. Review— temporary permanent total (2)(a) ant disabili- tice—clerical mistakes. The com- employer mission, benefits. ty the carrier upon referral of a it case to petitioned the commission for review. petition being the director filed commission, August set aside with it to refer- review director’s or a the seventh of the referee —that of award, supplemental ee’s review *3 shall stating: says “no doctor the entire record the di- by transmitted causation— septic or the the shoulder infection arthritis rector in case said and shall enter its aggravated by the injury were caused or on award thereon.... job.” The commission labeled the ref- (b) findings The of eree’s of causation “ultimate distinguished from ultimate conclusions finding” weight “the and held that of the by of the director or referee evidence establishes that the shoulder by shall not aside be set the commission impairment of the 10% on review of the director’s or referee’s arm the shoulder. The referee erred in findings decision unless of evidentia- attributing entirety impairment of the ry weight fact are to the of the resulting permanent and total to The may commission remand 1 injury.” the case to the director or referee The and appealed, claimant the Court of proceedings may such further di as it Appeals reversed the commission’s deci- rect, affirm, may aside, or it set modi or sion, remanding the case affirmation of fy any or order sanction relief ruling. the referee’s The court held that therein, conformity entered in with of referee’s causation was one law.[2] facts and the findings of fact and that such Prior to the 1981 amendment to section binding they on the commission unless 8-53-106(2), the commis in support lack substantial the record. authority sion had the record review the Consequently, the court determined that by transmitted director de novo setting commission erred aside the make evidentiary indepen of fact commission, finding. referee’s The em- dent of those of the referee. 1981 The ployer, sought and carrier certiorari review fact-finding amendment did not abolish all by this court. granted We certiorari commission, authority pre but it applied determine whether the commission vents the independently commission from proper of in setting standard review making when facts aside the causation. the evidentiary by facts found the referee are not contrary to the evi
I.
dence. The commission remains free to
independent
standard of review at issue is
“ultimate
set out
conclusions
§
2, 8-53-106(2),
governs
in Ch.
fact.”
sec.
1981 Colo.
The amendment
cases
all
(the
decided
Sess.Laws
476-477
amend-
effec
after its
ment),
date,
provides:
tive
May
1981. Nolan v. Indus
Assembly,
1. The
July
commission’s conclusion
based on a
The General
effective
report
medical
from Dr. Rowland which
repealed
states:
title
reenacted Article 53 of
my
opinion
any,
"It is
had little
C.R.S. with amendments. The current standard
bearing
septic
complica-
arthritis and
[the
review,
8-53-111(7),
set
C.R.S.
§
out
_
Assuming
tions]
Mr. Helm had sustained a
(Supp.1983), provides:
may
“The commission
rotator cuff
to the
shoulder as a
reverse, remand,
or affirm
order [entered
accident,
anticipated
of his
result
I would have
hearing
If the
director or
officer]....
permanent disability
of 5 to 10%. I assume
fact
the di-
entered
you
specu-
understand these last comments are
supported
hearing
rector or
officer are
sub-
give precise percent-
lative
I am unable to
evidence, they
stantial
shall not be altered
age
apportioned
that should be
the commission."
sequel."
infection and its
Commission,
commission,
(Colo.App. binding on review. The
P.2d 253
trial
1982).
argüe
employer, and
carrier
that causa-
tion is
which within
applies different
amendment
The 1981
discretion on
commission’s
review.
commission’s review of
for the
standards
determined,
in this case
Court
evidentiary facts and ultimate conclusions
Savio,
on the
that causation is an
basis
Co. v.
R & R Well Service
See
of fact.3
evidentiary fact.
Commission,
Industrial
658 P.2d
(Colo.App.1983). This court
We do not believe that causation is
ultimate facts in Lee v.
necessarily
an ultimate or an
Examiners, factual determination. Under
standard
(Colo.1982),
stated:
where we
P.2d
in certain
enunciated
fact, as distin-
Findings of ultimate
circumstances be an ultimate
in-
guished from raw
*4
evidentiary
an
others an
fact. Whether
law,
of
or at least a
volve a conclusion
injury
disability,
a
“caused”
sense
question
a mixed
of law
determination of
injury
particular
had a
role in the
fact,
rights
settle the
and liabili-
leading
disability,
chain of events
to the
is
finding
parties.
the
An ultimate
ties of
fact,
question
evidentiary
to be deter
a
of
by
reviewing
will be set aside
a
of fact
according
weight
mined
to the
and suffi
if, assuming
there is evidence
court
ciency of the evidence. Whether an eviden-
finding,
“contrary
it
to
support the
is
to
justifies
legal
the
tiary fact of causation
law,” ....
disability
“proximate
a
conclusion that
was
omitted).
See also
(citations
Id.
at
meaning
ly
the
of section
caused” —within
Davis,
(Colo.1981);
Ricci v.
627 P.2d
52—102(l)(c),
(Supp.1983)4 by a
3 C.R.S.
8—
—
Lovett, Blair v.
Colo.
i.e.,
fact,
injury is an ultimate
work-related
(1978).
In
we held that whether the
statutory
question
interpretation.5
of
of dental care in Denver includes
standard
cir-
retaking
X-rays
under certain
the
II.
fact;
how-
cumstances
is an
case,
finding in this
that
The referee’s
ever, whether a violation of that standard
injuries superimposed upon
category
“the claimant’s
statutory
falls
the
of care
within
complete
has caused a
“gross
incompetence”
is an ultimate
his diabetic condition
right arm at the
fact.
loss of the use of his
shoulder,”
impossible
ambiguous.
is
It is
parties
imply
to the instant case
“injuries” referred to
to tell whether
the
question
is
that
before us
their briefs
injury directly
attributable
include
whether,
as a matter of
fall,
injury
attributa-
to the claimant’s
claim-
an ultimate or
fact. The
infection,
Whether the
to his
or both.
ble
asserts, relying
on Savio House v. Den-
ant
link
finding
imply
meant
to
a causal
nis,
was
(Colo.App.1983),
that cau-
665 P.2d
fall and the infection is un-
between the
compen-
sation in the context of a worker’s
finding
clear.
If the
is read as
statement
an
fact which is
sation claim is
therefrom,
ultimate-evidentiary
shall obtain in all cases where
is identi-
distinction
3. This
(c)
24-4-105(15)(b),
following
occur:
...
Where the
cal to that in
conditions
§
by
Procedure Act: "The
injury
proximately
of the State Administrative
caused
or death is
fact,
arising
injury
disease
out of
by the
ultimate conclusions of
employment and is not
in the course of his
hearing
aside
officer shall not be set
added).
(emphasis
intentionally self-inflicted."
hearing
agency
officer's initial
on review of the
decision unless such
every
5.Technically
case involves the ultimate
evidence_”
contrary
weight
of the
to
practical
question
As a
causation.
however,
matter,
—if
52—102(l)(c)
states: "The
Section 8—
place
upheld by
the commission—will often
provided
compensation
in articles 40 to
beyond
proximate causation
fact of
title,
liability
any
in lieu of
other
54 of this
dispute.
resulting
personal
injury
any person
ity.
that the claimant’s work-related
A resolution of
issue
this
involves a
the direct cause of his infection and disabil- determination of the actual cause of Helm’s
disability.
ity,
evidentiary finding
then it is an
Such a
determination is eviden-
tiary
and,
be set aside
the commission if it is
character
in contrast to find-
ings
does
not involve a
conclusion
Alternatively,
finding may
of law or a determination of a
question
mixed
of law and fact.
read to assume certain
facts—
See Lee v.
Examiners,
the claimant’s work-related
(Colo.1982);
Davis,
P.2d 839
infection,
preventing early
Ricci
masked the
di-
(Colo.1981).
P.2d 1111
treatment;
agnosis
susceptible
made the shoulder more
to in-
recognize
that causation is a coat of
fection; or both—and to conclude that the many colors and in some cases the issue of
legal
of the disability.
was the
cause
proximately
whether
interpreted,
So
is one of ulti-
injury arising
out of and in
mate
as a
reviewable
conclusion of
employment
the course of
might well in-
appellate
law
commission and
volve a conclusion of law or at least a
courts.6
determination of
a mixed
of law
§
52—102(l)(c).
and fact. See
We are
8—
ambiguity
Given
dealing
not
with such an issue here. All
issue,
impossible
it
to determine
that is
warrant a
applied
whether
commission
the correct
causal connection between the work-related
standard of review. We therefore vacate
*5
accident
disability
and the
is an evidentiary
judgment
of the Court of
showing to a
probability
reasonable
remand this case with directions that it be
disability
Helm’s shoulder
precipitated
was
returned to the commission for remand to
11,
the accident of December
1978. See
existing
the referee for clarification of the
Royal
Industrial Commission v.
Indem-
findings
findings
and addition of such
as
210,
nity
(1951).
Colo.
Tague v. Coors Porcelain set aside may not be (1971). Evidentiary App. they are by the commission unless presented Second, on the facts are based evidence weight of the hearing. are conclu Ultimate facts legislature granted the commission through acquired reflection and rea sions independent con- power to make upon facts soning based Thus, be uni- of fact. there will clusions necessary in that a determi and are order form decisions rights parties can be nation of the which arise concerning issues of law. See Voorhees- come patterns. legisla- This under similar Bezek, Ind.App. Jontz Lumber Co. important particularly is purpose tive (1965); 209 N.E.2d Jacobson If involving diseases. claims Inc., Trim-Slide, 234 N.Y. 37 Misc.2d limited to the status of causation is (N.Y.Sup.1962). S.2d case, then whether bene- similarly situated claimants recover 8-52- to recover under section In order wholly dependent (1973 the Act 102(l)(c), Supp.), a fits under & 1983 C.R.S. is as- to whom the case the referee claimant must establish that: signed. This result is inconsistent with the
purposes of Act. recognize
I that a referee can find-
ings would, facts that as a
matter dictate the ultimate conclu- which the
sions of fact commission would required recognize to make. I also approach I
the “either/or” which have ad- mechanical, flexibility,
vocated lacks to an unfair lead result some eases.
However, purposes I believe Act justice
and the administration of are served by adopting precise
far better a clear and by engaging
rule case-by-case than
approach which will involve appel- endless litigation
late over the concepts elusive facts, facts, cause, di- cause, legal cause,
rect
cause. say am authorized to that Justice RO- joins special
VIRA concurrence.
In re PROPOSED INITIATED CONSTI
TUTIONAL AMENDMENT OF
EDUCATION, 1984. Association,
Colorado Education Gordon Heaton, Thyfault, E. Harold R. Richard Lansford, Carolyn Sandeen, N. E. Ar Aaker,
thur Oppo N. Palmer and Paul
nents, *7 Bolick, Pierce, Hugh Ron
Clint C. Fowl Stewart, Proponents,
er and Donald Meyer, Douglas
Natalie G. Brown and Woodard,
Duane Initiative Title
Setting Board.
No. 84SA231.
Supreme Colorado,
En Banc.
June