*1 еxculpatory tapes deleted claim circumstances, these Under
statements. discretion not abuse its court did recordings No
admitting into evidence. has shown.
prejudice been court.
Accordingly, affirm the district we
LOHR, J., participate. does not AND DENVER and
CITY COUNTY OF Compensation Insurance
State Petitioners,
Fund, State
INDUSTRIAL COMMISSION Colorado, Subsequent Injury Fund Colorado, and Harold
of the State of W.
Hatch, Respondents.
No. 83SC166. Colorado,
Supreme Court
En Banc.
Oct. Denver, Robinson, peti-
Kathleen W. tioners. *2 Woodard, Gen., Atty. quest claimant, B.
Duane Charles objection by without Howe, Gen., Deputy Atty. Denver, H. Richard For- joined SIF was party as a because man, Gen., Arnold, Timothy Sol. R. First prior of the claimant’s history of industrial Gen., Atty. Kathryn Aragon, Asst. J. Asst. injuries. attorney general represented The Gen., Denver, Atty. respondents for Indus- the SIF. Colo, trial Com’n State Subse- At August a the evi- quent Injury Fund of State of Colo. dence established that addition to the Ashen, George Freemyer, T. James E. injuries industrial Hatch glauco- also had Denver, respondent for Harold W. Hatch. ma, arthritis, asthma, history a of alcohol
abuse, and was obese. expert One medical opinion was of the that as a result of the ROVIRA, Justice. 1980 accident Hatch permanently was granted We certiorari to review an un- abled to the twenty-five percent extent of published appeals decision of the court of as a working unit. Another doctor did not affirming a decision of the Industrial Com- believe that the 1980 accident would leave (Commission). mission of Colorado The Hatch any permanent disability, but Subsequent court struck the Injury Fund because of multiple problems his medical (SIF) party ground as a on the that it is not he medically should be retired. He rated legal entity a which can sue or be sued. It Hatch twenty percent partially disabled ruled that section working as a unit. (1982 Supp.), applicable established the The (1) officer found that: Hatch review, standard of part and that that 1980; sustained an (2) industrial accident in the Commission’s order which reversed the he previously had permanent par- represented referee’s order an ultimate tial disability conclusion of industrial in an fact. It also held that industrial ac- impose SIF, and, order cident permanent on the a condi- combined with the permanent partial tion of disability total twenty-five percent must be as a prior the result of a subsеquent working indus- unit sustained in he was trial exclusive of nonindustrial rendered physical conditions and disabilities. We af- gainful employment. Based on these firm the court of decision in all findings, he concluded that Denver and its respects except part striking the SIF carrier, insurance Compensation State In- party. as a (SCIF), surance Fund were liable for the accident, related to the 1980 responsible SIF was paying for I. per claimant week for the $214 rest of his Hatch, claimant, Harold W. a 58- life, paymеnts such to commence after year-old employee City County Denver and paid $20,- SCIF had a total of (Denver) of Denver years, for twelve 802.50. jured his back working while on petitioned The SIF the Commission for 1980. Hatch had sustained a series of review. It contended that the claimant had employment-related injuries back for which failed to demonstrate permanent that his he undergone had surgery beginning in total disability solely was the result of As a result pre-1980 of these indus- accidents, disabilities, combined trial industrial he and that had received an award of eighteen there percent permanent was insufficient support evidence to disabili- ty- permanent disability. total
After accident, rejected Hatch took the latter con- medical retirement and filed a tention. It claim concluded that the industrial against seeking Denver injuries for suffered plus claimant his permanent and total At the re- other infirmities established his However, disability.1 it then deter- condition total total disability must pursuant to sеction 8—51— mined prior be result of a 106(l)(a), (1983 Supp.), the SIF was disability, exclusive of nonindus- any payments because the not liable trial physical conditions and disabilities. petitioned Denver and SCIF for certiora- exclusively by caused the industrial not ri, granted which we in order to consider were or- disabilities. Denver SCIF *3 first, three issues: whether section 8-51- pay to all dered to 106(l)(a), 3 C.R.S. Supp.), precludes the claimant entitled. was compensation by the SIF when nonindustri- appealed, naming Denver and SCIF the al fаctors contribute to per- the claimant’s Commission, claimant, the and the SIF as second, manent disability; whether the respondents. appeals The court of on its properly applied statutory the own motion ordered SIF stricken as a standard of review by established party ground legal on the it is not a third, Supp.); entity which can sue and be sued. See whether, only when seeks SIF review Sears, Baca, Roebuck & Co. v. by the Commission of a officer’s part, rev’d (Colo.App.1983), 1244 aff'd order, ruling by a favorable the Commis- Sears, Baca, part, Roebuck & Co. v. may sion upheld appeal. be on (Colo.1984). P.2d The court then held that the Commis- II. perma- sion’s order the claimant granted, Since certiorari was we disabled, nently totally and but that such have resolved the issue of the status of the exclusively by was not caused Sears, Baca, In Roebuck & SIF. accidents, was an ultimate con- (Colo.1984), we clusion of fact held that which the Commission was legal entity SIF is not a pursuant authorized to make but the to section 8- Director of 53-106(2)(b), (1982 Supp.).2 proper party C.R.S. Division Labor is a to agreed court also represent with the Commission that and safeguard SIF to its int impose Sears, order to on the a light SIF erests.3 In of our decision in 1.Although gram, pounds failed to ac- had lost sixteen since the knowledge many January the existence of Hatch’s nonin- accident in 1980. findings, dustrial disabilities in his it is uncon- part 2. That of the Commission’s order which the petitioners tradicted and concede that Hatch appеals represents court of held "ultimate con- suffered from numerous nonindustrial afflic- clusions of fact" states: tions which contributed to his total further, however, The evidence shows "Findings The Commission that the stated in its of Fact combined industrial disabilities themselves and Order”: permanently did not render the claimant separate The claimant confirmed these disabled, totally incapable testimony; health afflictions in his he stated of rehabilitation that the reason he had not worked since the steady gainful employment. It is correct to accident of was because of the state, finds, and the Commission that claim- have, problems ‘numerous that I in addition permanently totally ant was indeed to this last one.’ He elaborated that he had gainful employment, abled from but the acquired glaucoma, and had arthritis in his manent total was not caused exclu- back, in both knees and in one elbow. He sively by the ‘combined industrial disabilities’ police had left mechanical work on vehicles Rather, described. total dis- surgery eyes because of cataract on both ability by injuries was caused to the back resulting inability do that work. He also plus disabling effects of the claimant’s carpal surgery had tunnel in 1975 on both bodily several other afflictions not connected hands, a time in which he was also treated for injuries by with the back not caused chronic asthma which had commenced. A injuries. back principal complaint taking was that from drug Prednisone for asthma there is an irrita- Assеmbly In the General authorized the glaucoma. tion of the There had been little Director of the Division of Labor to administer improvement obesity problem; or no in his relating and conduct all matters to the subse- weight pro- he had never a undertaken loss division, quent injury fund in the name of the question in the affirm- Corp. answer the third Horizon Land
we
addition,
that Denver
Commission,
In
we note
Colo.App.
ative.
v. Industrial
objection
no
the SIF’s
SCIF raised
P.2d 638
SIF
Before the
hearing before the
in the
participating
created,
par-
employer
an
a
was
who hired
officer,
object
peti-
did not
tially
responsible
worker
disabled
SIF, and includ-
for review filed
tion
award if the worker
entire
party in
from the
appeal
the SIF as a
its
ed
subsequent injury
de-
suffered a
and was
Therefore,
decision.
we re-
Commission’s
clared
disabled.
the decision of the court
verse
Corp.
Colorado Fuel & Iron
v. Industrial
striking
party.
the SIF as
Commission,
pro-
those
In
limited circumstances
III.
statute,
employers
vided
affected
section 8-
Petitioners contend that
may
seek
apportion liability
now
be-
51-106(l)(a),
(1983 Supp.) requires
tween themselves and the
SIF when
SIF, regardless
*4
paid by
to be
the
accidents,
worker suffers at least two
each
the
contribution of nonindustrial factors
resulting
partial
in
industrial
to the
disability, and the combined effect of his
disagree.
provides:
This
We
industrial disabilities renders him perma-
previ-
employee
In a case where an
has
nently
disabled. When
ously
permanent partial
indus-
apportioned,
emplоyer
the
pays
only
is
for
disability
subsequent inju-
trial
and in a
portion
worker’s total
ry
permanent partial
sustains additional
subsequent
be
can
attributed to the
is shown that
industrial
and it
injury.
pays
The SIF
the remainder
the
combined
ren-
the
industrial disabilities
worker’s total
award as well as
employee
der
and total-
ongoing compensation payments
for
incapable
ly
steady gainful employ-
rest of the worker’s life.4
ment and
of rehabilitation to
steady gainful employment,
legislation
then the em-
Before thе
broadened
ployer in
employ
employee
whose
scope of apportionment
any per-
to include
subsequent
injury
sustained such
shall
disability,
manent
industrial
SIF
only
liable
portion
be
for that
compensated
only
workers
in
lim-
the more
employee’s
industrial
attributa-
ited circumstances of
job-relat-
cumulative
to
subsequent
injury,
ble
said
and the
hand,
injuries
arm, foot,
to the
leg,
ed
or
balance
due such em-
eye.
sec.
Ch.
1919 Colo.Sess.Laws
ployee
on account of
total dis-
lеgislature
730. If
fully
had wanted to
ability
paid
shall
subsequent
be
from the
opportunities
enhance
for
provided
fund as is
this
in
section.
persons
prior
medical
or
conditions
8-51-106(l)(a),
Section
3 C.R.S.
handicaps, employers would have
ac-
been
added).
Supp.) (emphasis
protection
apportionment
corded the
not
only
prior
disabilities,
for
but
purpose
The
establishing
the SIF was
prior
also for
impairments.
nonindustrial
provide partially
to
disabled workers with
Marino,
opportunities
Disability
Primеr on
employment by
added
for
re-
Permanent
lieving subsequent
employers
Compensa-
from the
the Colorado Workmen’s
Law,
harsh results of
responsibility”
(1980).
the “full
tion
57 Den.LJ.
The
Sears,
Baca,
rule.
legislature
Roebuck &
not
apportionment
has
extended
may
that name
specified
the director
sue and be
amount
in the statute to the Division
in all
sued
matters related to the
depend-
time a worker
Labor each
without
8-51-106,
injury fund. Ch.
sec.
§
job-related injury.
ents
dies from
The state
Colo.Sess.Laws 305.
treasurer is
custodian
the SIF. Section
8-51-106(l)(b),
Supp.).
4. The
by
SIF
employers
is funded
and their
required
pay
insurance carriers who are
an
ployment.”
we
The court of
found
impairments, and
prior
nonindustrial
was authorized
now.
refuse to do so
make its own
of ultimate conclu-
meaning
give effect to
We must
agree
of fact.
with the court of
sions
We
Assembly.
Stewart
by
tended
General
appeals.
Associa-
Employees’ Retirement
v. Public
tion,
Colo.App.
Section
2-4-101,
(1973), requires
IB C.R.S.
Section
(1982 Supp.) states:
phrases tо
con-
statutory words and
be
fact,
evidentiary
as
according
gen-
their familiar and
strued
tinguished
conclusions
from ultimate
meaning.
Har-
erally accepted
See also
fact,
by
made
director or
referee
Commission, ding
Industrial
by
shall not be
aside
set
commission
Here,
the statute
on review of the director’s or referee’s
that combined industrial
expressly provides
decision
of evidentia-
unless
employee
must render the
disabilities
weight of
contrary
fact are
steady
manently and
may
evidence. The commission
remand
incapable of reha-
gainful employment and
the case to
or referee
the director
provision is made for nonin-
bilitation. No
may
it
proceedings
such further
di-
preexisting
or
conditions.
dustrial factors
rect,
affirm,
aside,
it may
or
set
or modi-
of a statute
admin
Construction
fy
any
the order or
sanction or relief
charged with its enforce
istrative officials
therein,
conformity
entered
with the
given
deference
ment shall also be
faсts and the law.5
*5
Indemnity
v.
courts.
Travelers
Co.
Findings
evidentiary
of
fact
involve the
278,
(1976);
Barnes,
P.2d
552
300
191 Colo.
raw,
underlying
historical
the contro-
data
376,
Conour,
P.2d
Davis
178 Colo.
497
v.
versy,
findings
whereas
of ultimate fact
experience
The
1015
Commission’s
a
law or at least
involve
conclusion of
conclusion,
and
combined with the lan
question
mixed
of
determination of a
law
guage adopted by
Assembly,
the General
rights
fact and
and
settle the
liabilities
that section 8-51-
lead us to conclude
parties,
the
Board
of
de Koevend v.
(1983 Supp.)
106(l)(a),
precludes
3 C.R.S.
Education
End School District
West
compensation by the SIF when nonindustri RE-2,
219,
(Colo.1984);
688
225
Lee v.
P.2d
the
total
al factors contribute to
claimant’s
Examiners,
Board
Dental
654
State
839,
(Colo.1982);
Davis,
P.2d
844
Ricci v.
1111,
P.2d
1118
Blair v.
627
IV.
Lovett,
118,
13,
124 n.
582
P.2d
668,
n.
facts
The
also contend that
the
13
Ultimate
are
petitioners
statutory
applied
often stated in terms of a
stan-
improperly
the statuto-
Commission
Davis,
Ricci
by
of review established
sec- dard.
standard
(1982
ease,
(Colo.1981).
the
Supp.).
In the instant
hear-
tion
C.R.S.
finding
they
ing
“evidentiary”
claim the
officer’s
was lit-
Specifically,
conclusory
more
finding
hearing
own
for the
tle
than a
statement
substituted its
finding
“evidentiary”
phrased
the exact terms
statute.
officer’s
“[t]he
finding
settled
industrial disabilities render the The
was also one which
the
combined
totally
rights
parties;
the
the
claimant
liabilities
SIF,
required
incapa-
employer,
in lieu of
steady gainful
the
compensate
a result
ble of
em-
the claimant as
rehabilitation
by
Assembly,
July
If
effective
the director or
....
officer]
The Genеral
repealed
by
evidentiary
and reenacted Article
of title
fact entered
di-
C.R.S.
amendments. The current standard
by
with
supported
rector or
are
sub-
review,
8-53-111(7),
§
of
(1983
set out in
3 C.R.S.
evidence, they
by
stantial
be altered
shall not
may
Supp.), provides: "The commission
the commission."
reverse, remand,
any
or affirm
order [entered
Justice,
QUINN,
finding. These characteristics indicate
dissenting:
finding
one of ultimate fact.
is
First,
I
on
dissent
two counts.
I disa-
gree
majority’s
with the
characterization of
that the
The determination
combined
officer’s
on the cause
dustrial disabilities render
claimant
permanent
claimant’s
manently
requires
disabled also
ability as “ultimate conclusions of fact”
findings of a number of subissues which
subject
and therefore
to reversal
First,
involve ultimate conclusions of fact.
Industrial Commission under
8-53-
previously
the claimant must have
suffered
106(2)(b),
Supp.),
ch.
sec.
injury
perma-
an industrial
and sustained
Second,
1981 Colo.Sess. Laws 476-77.1
I
partial disability.
nent
Such a
is
accept
majority’s
cannot
construсtion
evidentiary
involving
one of
fact
raw his-
8-51-106(l)(a),
of section
Second,
data.
torical
claimant’s subse-
Supp.),
preclude
payment
compen-
quent
must result
in a
Subsequent Injury
sation benefits
permanent partial disability. The determi-
Fund when nonindustrial factors contribute
nation of the extent of this
permanent
to the claimant’s
and total dis-
permanent partial disability is one of ulti-
ability.
mate fact. R & R
Service
Well
Commission,
Industrial
I.
(Commission
(Colo.App.1983)
acts within
The fact that the claimant is entitled to
statutory scope
of review when it
total and
disability benefits is
respect
reaches its own conclusion with
disputed by any party
not
appeal.
to this
percentage
only dispute
is whether the claimant’s
disability),
approval
cited with
in Indus-
employer,
last
City
County
of Den-
Jones,
trial Commission v.
ver,
payment
is liable for
of the entire
(Colo.1984)
Helm,
and Baca v.
award
disability, or,
and total
Therefore,
(Colo.1984).
P.2d 474
the deter-
instead,
is liable for
percentage
subsequent permanent
mination that
permanent disability attributable to the
partial disability
previ-
combines
claimant’s last industrial accident on Janu-
ously
permanent partial disability
18, 1980,
ary
Subsequent
with the
Injury
*6
to render the claimant
disabled is
being
Fund
perma-
liable for the balance of
necessarily one of ultimate fact. The Com-
disability
nent and total
payments.
indepen-
mission was thus free to make its
found,
as relevant
dent
concerning
conclusion
of-
here, (1) that
the claimant sustained a
findings
ficer’s
of ultimate fact. Bacа v.
twenty-five percent permanent disability as
Helm,
(Colo.1984);
of the evidence.” this Commission, 153, that 538 no determination the hear- Colo. P.2d 430 case made (1975); Industrial Commission v. Royal ing on the actual cause of findings officer’s Co., Indemnity 124 Colo. the claimant’s (1951). required We have an employ never weight contrary of the evi- were ee to establish that the causal nexus be Instead, dence. commission made ex- tween an accident and industrial an ensu findings tensive factual of its own on thеse ing industrial was such as to my in matters. Section eliminate all nonindustrial factors. “Com view, does the commission not authorize pensation dependent is not on the state of engage type independent in the and far- employee’s an or his health freedom from ranging pursued factual that it inquiry tendency.” Industrial weakness or latent this case. The commission’s review func- Co., Commission v. Newton predicated assumption tion “is on the (1957). Rather, 314 P.2d once [hearing position is in the best officer] it is detеrmined that an arose out of Jones, questions.” to resolve factual employment, and in the course of “the re J., (Quinn, dissenting). P.2d at 1122 This flowing proximately sults and naturally assumption eminently is reasonable be- aegis therefrom come under questions cause resolution factual will Ball, Corp. Metals statute.” Standard v. often turn on the officer’s assess- 510, 515, (1970), Colo. 474 P.2d credibility ment of testify- witnesses Corp. Sargent, Vanadium quoting ing his before him and allocation of differ- 555, 566, Colo. 307 P.2d I ing weight respective to their testimony. see no reason adopt different standard commission, These are which the functions of causation purposes determining for “record,” in its review of the cannot effec- Subsequent Injury liability. Fund In many tively perform. cases might nonindustrial factors well con agree While I the hearing officer’s tribute in toway perma some a worker’s Subsequent determination of the Injury disability, nent and total but these nonin liability conclusion, Fund was an ultimate factors, themselves, dustrial are not since it legal was a conсlusion that resolved such as to render the worker permanently rights parties, I liabilities disabled absence of the believe it inappropriate for the com- ensuing industrial accident. mission evidentiary to make those I impose Subsequent Injury would Fund that were to a essential correct resolution liability whenever it is demonstrated that of this appropriate ultimate issue. The industrial was a commission, course my for the opinion, rendering substantial factor in employ was to remand the сase to the hearing ee permanently any for additional factual steady gainful employment necessary correctly determine the liabili- rehabilitation. This con ty of Subsequent Injury Fund for the comports struction statutory goal with the and total disability. Subsequent Injury liability, Fund is to opportunities “enhance the for em III. ployment partially persons.” disabled I also disagree majority’s hold- Horizon Corp. Land Industrial Com ing 8-51-106(l)(a) that section precludes mission, 178, 181, 34 Colo.App. Subsequent Injury Fund when non- Subsequent Without Inju faсtors contribute to the claim- protection, Fund employers will natural *8 ant’s total disability. In a ly be persons reluctant to hire who suffer worker’s proceeding a claim- from industrial and nonindustrial disabili ant only need preponderance establish because, ties demonstrates, case this of the evidence a disability employer' resulted last will be liable for from or was precipitated by an industrial and total compensation benefits, notwith- standing employee’s preexisting disability, in the em- the event industrial accident and
ployee sustains an totally incap-
is thereafter employment
able
capable of rehabilitation.
majority, by conditioning Subsequent Inju- Fund on a demonstration that in way
nonindustrial factors no contributed disability, puts potential employer that he or
last on notice
she assumes a substantial risk economic
hiring someone who suffers from both in- and nonindustrial
dustrial disabilities. The
resulting employment oppor- diminution in suffering joint
tunities those conse-
quences of industrial and nonindustrial dis- is, view, my very
abilities antithesis 8-51-106(l)(a)
of what section seeks to ac-
complish.
I judgment would reverse the
court of and hold that the Subse-
quent Injury Fund is liable for the total permanent disability excess twenty-five percent disability attrib-
utable to the industrial accident of
18,1980. GARDENS, INC.,
MEMORIAL a Colora- corporation,
do Memorial d/b/a Petitioner, Cemetery, Gardens
OLYMPIAN SALES & MANAGEMENT
CONSULTANTS, INC., a Colorado cor- poration, Evergreen Shrine of d/b/a Rest, Rombocos, Denny Hoy, H. Costas I, II,
John Doe John Doe John Doe III IV, Respondents. and John Doe
No. 83SC19.
Supreme Colorado, Court of
En Banc.
Oct. 1984.
Rehearing Denied Nov.