Hallenbeck v. Butler
| Citation | 74 P.2d 708,101 Colo. 486 |
| Decision Date | 13 December 1937 |
| Docket Number | 14244. |
| Parties | HALLENBECK et al. v. BUTLER. |
| Court | Supreme Court of Colorado |
In Department.
Error to District Court, City and County of Denver; George F Dunklee, Judge.
Proceedings under the Workmen's Compensation Act by Irvin Butler opposed by C. V. Hallenbeck, the State Compensation Insurance Fund, and the Industrial Commission of Colorado. An award of the Industrial Commission against claimant was reversed in district court, judgment entered for claimant, and defendants bring error.
Judgment affirmed.
Byron G. Rogers, Atty. Gen., Louis Schiff, Asst. Atty. Gen., and Harold Clark Thompson, of Denver, for plaintiffs in error.
Smith Brock, Akolt & Campbell and J. H. Shepherd, all of Denver for defendant in error.
Butler, the defendant in error, an employee of Hallenbeck, plaintiff in error, filed with the Industrial Commission a claim, which it now appears, is limited largely to payment of medical services for the treatment of his eyed rendered necessary, as it is alleged, by either an 'injury' to his eyes or an 'occupational disease' as may be determined under the Workmen's Compensation Act, '35 C.S.A., c. 97, §§ 280-429. Reference will be made to him herein as claimant, and since it will be unnecessary to refer to any of the plaintiffs in error, other than Hallenbeck and the Industrial Commission, the former will be mentioned by name and the latter as the commission.
The commission found against claimant, and upon his petition for review in the district court, it was ordered to vacate its award, and proceed to carry out a judgment entered in favor of claimant. This writ of error is prosecuted to review that judgment.
The claim as filed shows that 'approximately February 25, 1937,' while claimant was 'cleaning up grease and dirt in the shop, some of this grit flew in [his] right eye.' The employer's report and the evidence disclose that claimant was employed as shop foreman by Hallenbeck, a road contractor, and had been in his service about seven years. From this shop, a brick building with cement floors, supplies are sent out to contractors on jobs, and in it trucks and 'outfits' are repaired. Claimant acted as warehouseman and helper on the repair work. He cleaned off equipment preparatory to repairing and painting it, concerning which he testified: 'We clean with a putty knife or a sharp chisel, scraping, and it flies off so that sometimes it will get in your eyes and you just don't get your eyes shut quick enough to evade it.' The claimant, and Dr. Marcove who treated him, were the only witnesses testifying at the hearing. So far as the question of disability is concerned, there is no showing or claim of either temporary or permanent disability. The claimant never ceased work, but his condition required medical services for which he makes claim, but we find nothing in the record as to the amount.
The testimony of the physician is to the effect that claimant gave him a history of his employment and attending conditions, and stated that he had 'received some foreign bodies in his eyes,' and that 'he worked in a place where he got a lot of dust and dirt and grease in that eye and it has been over a period of several months that he got these foreign bodies.' There was no history of a definite accident, and the doctor, in response to the question 'It would be a rather long process to bring it about?' answered, Further testifying he stated: 'It has been developing over three or four weeks at least; I think it is of the nature of an occupational disease.' The doctor previously had testified that he first saw the claimant on March 29, at which time he was suffering from an inflamed and swollen condition of the upper lid of the right eye, and that 'there were four or five large abscesses in the upper lid and one large one on the lower lid'; that these abscesses had become inflamed and infected; that he removed them; that 'these abscesses are caused by infections in the little glands in the lid and...
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