Merriman v. Industrial Com.

WILLIAM H. FITCH, a filling station attendant, filed with the Industrial Commission a claim for workmen's compensation benefits against his employer and the latter's insurer, plaintiffs in error, hereinafter designated as respondents, for injuries sustained by him in an accident arising out of and in the course of his employment. The injuries allegedly occurred when he slipped upon a grease spot and fell upon the cement pavement.

The Commission found:

"That the claimant sustained an accident arising out of and in the course of his employment on May 1, 1948, when on that day he slipped and fell in a sitting position on concrete. His average weekly wage was $50.00. He left work as a result of his injuries on May 1, 1948. During his temporary total disability he suffered pain in his lower back and spine. He returned to work May 9, 1948, but was unable to continue, and left work again May 16, 1948. He was hospitalized and on June 1, 1948, his left kidney was surgically removed. It was found that his kidney was diseased as a hydronephrosis.

"On May 3, 1948 and on the following day, claimant passed blood in his urine. From this and other facts, the Referee finds that the claimant's accident precipitated symptoms of his hydronephrosis, and resulted in his being operated on June 1, 1948.

"Claimant was able to return to work on August 11, 1948, and has sustained no permanent disability as a result of his accident.

"It is, therefore, ordered: That the respondents pay compensation to the claimant at the rate of $17.50 per week from May 20, 1948 to August 10, 1948, inclusive, for and on account of his temporary total disability.

"It is further ordered: That the respondents pay for the necessary medical, surgical and hospital expense incurred as a result of said accident within four months from the date thereof and not to exceed $500.00 in value."

The district court upheld the above findings and entered judgment in accordance therewith. Plaintiffs in error urge reversal of the judgment upon two grounds: (1) "The evidence does not support the findings of the Industrial Commission that claimant's operation and disability was proximately caused by his accident of May 1, 1948;" (2) "The findings of fact do not support the award of the Industrial Commission." Counsel for respondents concede that the latter are liable under the Workmen's Compensation Act for compensation arising from disability proximately caused by claimant's accident, but deny that the accident here under consideration was the proximate cause of claimant's disability.

The portion of the above findings here challenged is: "Claimant's accident precipitated symptoms of his hydronephrosis, and resulted in his being operated on June 1, 1948."

We deem it unnecessary, under the circumstances disclosed, to review all of the evidence. It is sufficient to state in connection therewith that four doctors who examined claimant admittedly were unable from a preoperative diagnosis to determine the nature or extent of claimant's injuries and advised an exploratory operation, during which claimant's pre-existing condition, above described, was disclosed.

[1] We have held that, "The fact of claimant's preexisting condition of arthritis and its being a contributing factor to his disability does not preclude payment of compensation." Kamp v. Disney, 110 Colo. 518,135 P.2d 1019. In Spirakoff v. Pluto Co., 105 Colo. 552,100 P.2d 154, we stated, "An aggravation of a pre-existing abnormal or diseased condition may be the basis for an award of compensation." In still another case we held that the Industrial Commission, where there is a preexisting disease, should determine, among other things, whether or not such pre-existing condition was aggravated by the injury. Industrial Commission v. Dorchak,97 Colo. 142, 47 P.2d 396.

Counsel for plaintiffs in error contend that there is no evidence herein justifying a finding that claimant's condition was aggravated by his fall or that the course of his disease was in any manner accelerated thereby.

[2] Under the circumstances here considered, in the light of the provisions of section 330, chapter 97, '35 C. S. A. (Supp.), we are convinced that, regardless of any aggravation of claimant's pre-existing condition, he was entitled to recover the amounts he expended for surgical and hospital treatment which was deemed by competent physicians reasonably necessary to relieve him from the effects of the accident, and he also was entitled to recover for the disability resulting from the operation.

The above conclusion is not changed by the fact that the surgical treatment here involved, contrary to the preoperative diagnosis, was not performed to relieve from the effects of the accident, but rather, as subsequently discovered, was needful to relieve from the preexisting disease. The commission made a finding, based upon competent evidence, that the operation was necessary as a result of the accident, and found, in effect, that all disability following the operation resulted naturally from the accident. The above circumstances clearly show the causal connection between the injury, the operation, and the disability, and in those respects meet the requirements set forth in Aetna Casualty Surety Co. v. Industrial Commission, 116 Colo. 98,179 P.2d 973.

The judgment of the trial court is accordingly affirmed.

MR. JUSTICE JACKSON dissents.