Summary
In Johnson v. Industrial Commission, 148 Colo. 561, 366 P.2d 864, 865 (1961), death benefits were awarded where the worker died of bacterial pneumonia secondary to on-the-job injuries he suffered "which caused him pain and that the pain of the injury kept him from coughing and clearing out his bronchi."
Summary of this case from In re FisherOpinion
No. 19,786.
Decided December 18, 1961.
From a judgment affirming denial of compensation in a death claim, the claimants bring error.
Reversed.
1. WORKMEN'S COMPENSATION — Death — Proximate Cause — Evidence. Where employee suffered an accidental chest injury and death followed shortly thereafter from bacterial pneumonia, and where only evidence dealing with causation supports conclusion that injury was the proximate, though not immediate cause of death, compensation should have been awarded, it not being necessary that the injury be the immediate, but only the proximate cause of death, in order to sustain an award.
2. Evidence — Undisputed Facts — Question of Law. Where the facts before the Industrial Commission are undisputed, the question is one of law and the court is not bound by the conclusion of law reached by the Commission.
Error to the District Court of El Paso County, Hon. William M. Calvert, Judge.
Mr. EUGENE O. PERKINS, for plaintiffs in error.
Mr. HAROLD R. THOMPSON, Mr. LOUIS SCHIFF, Mr. ALIOUS ROCKETT, Mr. FRED B. DUDLEY, Mr. FRANCIS L. BURY, for defendants in error State Compensation Insurance Fund and Aldridge Mercantile Company.
Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, Deputy, Mr. PETER L. DYE, Assistant, for defendant in error Industrial Commission of Colorado.
THIS case is here for the second time. In Johnson v. Industrial Commission, 137 Colo. 591, 328 P.2d 384, the judgment was reversed and the cause remanded for further determination by the Industrial Commission of an award denying death benefits to the widow and minor child of the decendent worker. On remand the Commission again denied compensation to the claimants, and again the trial court affirmed the award. The claimants are here on writ of error seeking reversal.
Charles Johnson, the decedent, was a truck driver for the Aldridge Mercantile Company. While making a delivery on January 16, 1956, and again on January 27, 1956, he sustained accidental injuries. As a result of these injuries he left work on January 27, 1956, and was confined to his home until February 9, 1956, when he died of pneumonia.
Dr. Houf, the decedent's attending physician, in the proof of death stated that the decedent had suffered a chest wall injury but was unwilling to say whether or not this injury had a causal connection with the death. An autopsy was performed by Dr. James Beattie two days after decedent's death. He reported that the decedent had a chest wall injury demonstrated by a discoloration due to blood in the tissues both on the inside of the right chest in the lower portion and on the outside of the chest in the same area as though he had an injury due to direct violence, either by falling or being hit by something. He testified that in his opinion decedent died from bacterial pneumonia which went to the point of fatal termination because of the confusing factor of the patient's having been injured which caused him pain and also because the pain from this injury kept him from coughing and clearing out his bronchi.
A reporter's transcript of the testimony of the witnesses and the reports of Drs. Houf and Beattie were submitted to Dr. Condon, a thoracic expert, for an opinion. Dr. Condon made a report on the matters submitted to him and also appeared and testified. It was his opinion that the deceased had suffered only a strain and that therefore his injury could not in any way be a cause of death.
Upon this state of the evidence the Commission, in the original proceeding, found that the accidental injury had no causal connection with the death. In our former opinion in this case, Johnson v. Industrial Commission, supra, we advised the Commission that Dr. Condon's opinion as to the cause of death based, as it was, wholly on his hypothesis that the deceased suffered only a strain as a result of the accident, had no probative value on the element of causation of death. We stated that Dr. Condon's testimony had no residium of legally admissible evidence to bolster it. The case was remanded with instructions to determine whether the facts brought the claim within the provisions of C.R.S. '53, 81-13-2 and to make further determination consonant with the views expressed.
On remand, the Commission took no further testimony relying solely on the record made in the previous hearing. This time the Commission made findings that the deceased had suffered a chest wall injury in the accident and that he had died from bacterial pneumonia. There is evidence in the record to support both of these findings and they must stand.
The Commission then went on to find that there was no evidence that the injuries sustained by the deceased were the proximate cause of his death. The Commission totally ignored the testimony of Dr. Beattie that the decedent died from bacterial pneumonia which undoubtedly went to the point of fatal termination because of the confusing factor of the decedent's injury kept him from coughing and clearing out his bronchi. This testimony was now the sole and uncontradicted evidence in the case concerning causation, since Dr. Condon's testimony was now doubly inadmissible, first, because of our former opinion, and, secondly, because it was based on the premise of a strain which the Commission itself rejected by finding that the decedent had suffered a chest wall injury. The only evidence in this case dealing with causation supports the position that the injury was the proximate, although not the immediate, cause of the death.
It is not necessary that the injury be the immediate cause, but only the proximate cause of the death in order to sustain an award. Columbine Laundry Co. v. Colorado Industrial Comm., 73 Colo. 397, 215 Pac. 670.
To ignore the uncontradicted evidence in the case relating to causation amounts to basing the award on speculation and conjecture. This the Commission cannot do.
Where the facts are undisputed as they are here, the question is one of law and not of fact and the Court is not bound by the conclusion of law reached by the Commission or the referee. Marotte v. State Compensation Fund, 145 Colo. 99, 357 P.2d 915; Billings v. Industrial Commission, 127 Colo. 69, 253 P.2d 1058.
The judgment is reversed and the cause remanded to the trial court with directions to remand the same to the Industrial Commission with instructions to enter an award for the claimant.
MR. JUSTICE DAY and MR. JUSTICE McWILLIAMS dissent.
MR. CHIEF JUSTICE HALL not participating.