Baca v. Helm , 1984 Colo. LEXIS 548 ( 1984 )

QUINN, Justice,

specially concurring:

I concur in the court’s holding that, because the referee’s findings are ambiguous at best, a remand is necessary to clarify or to enter additional findings on causation. In my view, however, the issue of causation in this case raises a question of eviden-tiary fact only — that is, whether the work-related accident on December 11, 1978, induced or brought about the ensuing disability. A resolution of this issue involves a determination of the actual cause of Helm’s disability. Such a determination is eviden-tiary in character and, in contrast to findings of ultimate fact, does not involve a conclusion of law or a determination of a mixed question of law and fact. See Lee v. State Board of Dental Examiners, 654 P.2d 839 (Colo.1982); Ricci v. Davis, 627 P.2d 1111 (Colo.1981).

I recognize that causation is a coat of many colors and in some cases the issue of whether a disability was proximately caused by an injury arising out of and in the course of employment might well involve a conclusion of law or at least a determination of a mixed question of law and fact. See § 8 — 52—102(l)(c). We are not dealing with such an issue here. All that is necessary to warrant a finding of causal connection between the work-related accident and the disability is an evidentiary showing to a reasonable probability that Helm’s shoulder disability was precipitated by the accident of December 11, 1978. See Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951).

A finding by the referee on causation will constitute, in my opinion, a finding of evidentiary fact, as distinguished from an ultimate conclusion of fact, within the meaning of section 8-53-106(2)(b), 1981 Colo.Sess.Laws 476, 476-77. Such a finding may not be set aside by the commission on review unless contrary to the weight of the evidence.