Wesco Electric Company v. Shook

Mr. Justice Moore

delivered the opinion of the Court.

We will refer to defendant in error Shook as claimant, and to plaintiffs in error as the employer or the insurance carrier.

The Referee who heard the evidence in support of the claim made findings that the claimant had not suffered an accidental injury arising out of and in the course of his employment. Upon review before the Commission the following award was made: -

“In the above-entitled cause, the Commission having re-reviewed the entire file as prayed by the respondents’ petition filed herein on November 5, 1958, and now being further advised in the premises, finds:

“That the Referee’s Order of August 22, 1958, is not supported by the testimony and the law and that the same should be reversed and compensation awarded; that the Commission’s Findings of Fact and Award of October 22, 1958, should be amended by striking all of paragraphs two and three of the findings of fact, and that the following findings of fact be entered as the Commission’s findings of fact at this time:

“That the Referee’s Order of August 22, 1958-, is not supported by the testimony and the law and that the same should be reversed, and compensation awarded to the claimant.

“It is further found that the claimant, an electrician, was taping in generator 1-ead terminals, working off a platform with an area of approximately three (3) feet between said platform and the bottom of the generator housings. This work required the claimant to assume a squatting position while manipulating his hands overhead and while leaning backward. The work area was such that it was impossible for the claimant to sit down or to straighten up while performing his task. During this period of time the claimant was required to work ten-hour shifts daily. The claimant’s work position produced an unexpected and unusual result from an extraordinary and unusual position and it is, therefore, found to constitute an accident.

“The matter of an unexpected and unusual result being a compensable accident was before the Court in the matter of the “Industrial Commission v. La Foret Camps,” 125 Colo. 503, 245 P. (2d) 459.

“The Commission further finds that the claimant herein had not reached maximum improvement at the time of the hearing herein. * * * ”

Benefits under the compensation law were ordered paid to claimant. Thereafter, the case was taken to the district court for review, and that court sustained the award made by the Commission. The employer and insurance carrier seek review of the judgment by writ of error.

Without attempting to detail the evidence in this case, it may be said that we have examined the record fully and there is ample evidence to show that at the time claimant began the job upon which he was working he had been, and was, a normally healthy man, fully able to perform the usual duties of an electrician; that shortly after he commenced this particular job he began to suffer severe pain in his back and loss of full use of his left leg, until finally he was forced to leave his job. The diagnosis and subsequent operation disclosed the existence of a herniation of an intervertebral disc.

Question to be Determined.

Where an electrician, in previous good health, is required to assume a cramped and unnatural position in performing his assigned work, for several days, during which he suffered severe pain in his back and loss of the full use of one leg subsequently diagnosed as herniation of an intervertebral disc, is evidence thereof sufficient to support a finding that such disability was the result of an accident arising out of and in the course of his employment?

The question is answered in the affirmative. The term “accident” has a particular meaning when used in connection with injuries for which compensation is sought under Workmen’s Compensation Acts. It is not necessary that there should be anything extraordinary occurring in or about the work itself, such as slipping or falling, in order to produce an injury as the result of an accident. Carroll v. Industrial Commission, 69 Colo. 473, 195 Pac. 1097; Keating v. Industrial Commission, 105 Colo. 155, 95 P. (2d) 821; Industrial Commission v. La Foret Camps, et al., 125 Colo. 503, 245 P. (2d) 459; J. W. Metz Lumber Co., et al., v. Herbert Taylor, et al., 134 Colo. 249, 302 P. (2d) 521. This court has consistently held that under the Workmen’s Compensation law “By the term ‘injury’ is meant, not only an injury the means or cause of which is an accident, but also an injury which is itself an accident.” United States Fidelity and Guaranty Co., et al. v. Industrial Commission, et al., 96 Colo. 571, 45 P. (2d) 895.

In Industrial Commission, et al. v. Royal Indemnity Co., et al., 124 Colo. 210, 236 P. (2d) 293, it was said, inter alia:

“ * * * If the evidence, and the logical inferences therefrom, can be said to warrant a conclusion that the accident, within a reasonable probability, resulted in the disability, the claimant is entitled to compensation, * * * ."

In Gates v. Central City Assn., 107 Colo. 93, 108 P. (2d) 880, the only evidence relating to an accident was the adverse condition under which the claimant was required to do his work. Notwithstanding that the Commission denied the claim and there was an affirmance of that order by the district court, this court reversed the judgment and ordered the payment of benefits. The opinion contained the following pertinent language, quoting from In Re McNicol, 215 Mass. 497:

“An accident ‘arises out of’ the employment when there is apparent to the rational mind, upon consideration of all the circumstances, a causal connection between the conditions under which the work is required to be performed and the resulting injury.”

In the instant case the Commission recognized this rule, and with ample supporting evidence ordered the payment of compensation.

Other decisions of this court announcing principles which are applicable to this case, and which combine to require affirmance of the judgment are: Industrial Commission, et al. v. Ule, 97 Colo. 253, 48 P. (2d) 803; Vanadium Corp. v. Sargent, 134 Colo. 555, 307 P. (2d) 454; J. W. Metz Lumber Company, et al. v. Herbert Taylor, et al., supra; Peter Kiewit Sons’ Company, et al. v. Industrial Commission, et al., 124 Colo. 217, 236 P. (2d) 296; and Industrial Commission, et al. v. Corwin Hospital, et al., 126 Colo. 358, 250 P. (2d) 135.

The evidence in the instant case was sufficient td warrant the findings and award of the Industrial Commission.

The judgment accordingly is affirmed.

Mr. Justice Hall and Mir. Justice Day dissent.