Anderson v. Brinkhoff, 92SC271

• Decision Date: 27 September 1993
• Docket Number: No. 92SC271,92SC271
• Citation: 859 P.2d 819
• Parties: Donald E. ANDERSON, Petitioner, v. David W. BRINKHOFF; Colorado Compensation Insurance Authority; and the Industrial Claim Appeals Office of the State of Colorado, Respondents.
• Court: Colorado Supreme Court

Page 819

859 P.2d 819

Donald E. ANDERSON, Petitioner, v. David W. BRINKHOFF; Colorado Compensation Insurance

Authority; and the Industrial Claim Appeals

Office of the State of Colorado, Respondents.

No. 92SC271.

Supreme Court of Colorado,

En Banc.

Sept. 27, 1993.

Rehearing Denied Oct. 25, 1993.

Wilcox & Ogden, P.C., Ralph Ogden, Denver, Steven U. Mullens, P.C., Steven U. Mullens, Colorado Springs, for petitioner.

Michael J. Steiner, Carolyn A. Boyd, Denver, for respondents.

Law Offices of Robert A. Weinberger, P.C., Robert A. Weinberger, Thomas A. Kanan, Denver, for amicus curiae Colorado Defense Lawyers Ass'n.

Chief Justice ROVIRA delivered the Opinion of the Court.

We granted certiorari to resolve an apparent conflict between the court of appeals decision below in Anderson v. Brinkhoff, 839 P.2d 487 (Colo.App.1992), and Masdin v. Gardner-Denver-Cooper Industries, Inc., 689 P.2d 714 (Colo.App.1984). We believe that Masdin correctly interprets the Workers' Compensation Act, and accordingly reverse the court of appeals and remand with directions.

I

Petitioner, Donald Anderson, has alpha-1 antitrypsin deficiency, a hereditary condition which causes progressive emphysema and associated heart problems. Anderson's condition may be summarized as follows. The human body releases trypsin to attack dust and other particles inhaled into the lungs. Generally, the body produces alphatron S antitrypsin which prevents the trypsin from attacking and damaging the lungs. Anderson's body does not produce enough antitrypsin. Thus, when Anderson inhales particles into his lungs, either intentionally (i.e., smoking) or unintentionally (i.e., inhalation of construction dust), his body releases trypsin to attack the particles. However, his body does not release enough antitrypsin to prevent the trypsin from attacking his lungs. Consequently, the trypsin generated by Anderson's body has destroyed the tissue of his lungs, causing hypoxemia and ultimately emphysema. Due to the hypoxemia, Anderson has developed core pulmonale which has resulted in permanent injury to his heart.

Anderson was employed as a carpenter from 1974 until 1988. Throughout his employment Anderson was exposed to airborne particles--sawdust and common construction site dust--which aggravated his disease. Additionally, Anderson smoked cigarettes from 1982 until 1986, which further contributed to the progression of his disease. Approximately one year after he quit smoking, Anderson was diagnosed with alpha-1 antitrypsin deficiency. He was advised to avoid all exposure to dust, including occupational exposure. Despite this warning he continued to work as a carpenter.

In July of 1988, Anderson started working as a carpenter for respondent, David Brinkhoff. Prior to this time Anderson worked for himself. Anderson testified that this change of employment was due to the fact that he could not meet the exertive requirements of working on his own. By this time he was suffering from a severe airflow limitation and heart disease secondary to his emphysema. During his employment with Brinkhoff, Anderson was exposed to sawdust and other common construction site dust. Brinkhoff was aware of Anderson's condition and was also aware that his continued occupational exposure was making his condition worse. By December 1988, Anderson's emphysema had become so severe that he was unable to continue working as a carpenter or in any other occupation.

In January 1989, Anderson filed a claim under the Workers' Compensation Act of Colorado ¹ requesting compensation for his emphysema which was allegedly aggravated while he worked for Brinkhoff.

Finding that Anderson's occupational exposure was not a necessary precondition to his development of severe emphysema, the Administrative Law Judge (ALJ) concluded that both Anderson's occupational exposure and non-occupational cigarette smoking accelerated that disease. The ALJ also found that Anderson's last exposure to occupational dust occurred while he was employed by Brinkhoff. Relying on Masdin v. Gardner-Denver-Cooper Industries, Inc., 689 P.2d 714 (Colo.App.1984), the ALJ ruled that Anderson sustained an "occupational disease only to the extent that occupational conditions have contributed to [his] overall disability." The ALJ concluded that Anderson's "smoking and occupational dust exposures were co-equal aggravating factors in the acceleration of [his] severe emphysema. Therefore, 50% of [Anderson's] disease is attributable to his occupational exposures." Accordingly, the ALJ ruled that Anderson was entitled to 50% of the medical and disability benefits to which he otherwise would be entitled.

All parties appealed the ALJ's order to the Industrial Claim Appeals Office (ICAO) asserting that the ALJ misconstrued the statutory and decisional law on occupational diseases. A panel of the ICAO reversed, noting that the aggravation of Anderson's disease was equally attributable to exposure to employment hazards and exposure to hazards outside of his employment. Thus, it ruled that "the portion of the disease found to be attributable to [Anderson's] employment is not compensable and [his] claim for worker's compensation benefits must be denied and dismissed."

The court of appeals affirmed. Interpreting the occupational disease statute, the court concluded that "a claim must be denied if a non-industrial cause is an equally exposing stimulus even if a pre-existing condition exists." Anderson, 839 P.2d at 488. Accordingly, because Anderson's disease was equally aggravated by smoking and occupational dust, it concluded that compensation for the occupational portion was not appropriate.

II

The specific section at issue defines occupational disease as:

[A] disease which results directly from the employment or the conditions under which work was performed, which can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside of the employment.

§ 8-41-108(3), 3B C.R.S. (1986) (now codified at § 8-40-201(14), 3B C.R.S. (1993 Supp.)) (emphasis added). The thrust of Anderson's argument is that if section 8-41-108(3) is read as conveying a meaning distinct from the "arising out of" test mandated by section 8-52-102(1)(b), 3B C.R.S. (1986) (now codified at § 8-41-301(1)(b), 3B C.R.S. (1993 Supp.)), ² such a construction would frustrate the legislative purpose in merging the Occupational Disease Disability Act of 1945 into the Workers' Compensation Act in 1975. Rather, he argues that the intent of the 1975 General Assembly in merging the two Acts was to make occupational diseases as fully compensable as occupational accidents. Accordingly, he asks us to construe the occupational disease statute, section 8-41-108(3), 3B C.R.S. (1986), as requiring no more than that the disease arise out of and in the course of employment. Although Anderson makes a plausible argument, we believe that the plain language of the statute sets forth additional requirements which must be met before an occupational disease will be found to be compensable under the Workers' Compensation Act. However, we agree with Anderson that his occupational disease is compensable. Accordingly, we reverse.

A

Historically, a distinction has existed between "occupational diseases" and "accidents/injuries," Colorado Fuel & Iron Corp. v. Industrial Comm'n, 154 Colo. 240, 244, 392 P.2d 174, 176-77 (1964); Hallenbeck v. Butler, 101 Colo. 486, 489, 74 P.2d 708, 710 (1937); Industrial Comm'n v. Ule, 97 Colo. 253, 256-57, 48 P.2d 803, 804 (1935), which has traditionally been justified by the difficulty in determining the cause of the claimed occupational disease. See Joseph LaDou et al., Cumulative Injury or Disease Claims: An Attempt to Define Employers' Liability for Workers' Compensation, 6 Am.J.L. & Med. 1, 12-13 (1980). Generally, occupational diseases were not compensable before the adoption of the Occupational Disease Act in 1945. Hallenbeck, 101 Colo. at 489, 74 P.2d at 710. See 1B Arthur Larson, Workmen's Compensation Law § 41.20 at 7-487 (1993). However, a disease was compensable if it was viewed as an accident--if it arose from "an unusual or excessive exposure at a time reasonably definite," and if "such condition was unexpected and occasioned by an accident." See Great Am. Indem. Co. v. State Compensation Ins. Fund, 108 Colo. 323, 326, 116 P.2d 919, 920 (1941); Columbine Laundry v. Industrial Comm'n, 73 Colo. 397, 399, 215 P. 870, 871 (1923); Central Surety & Ins. Corp. v. Industrial Comm'n, 84 Colo. 481, 485-86, 271 P. 617, 619-20 (1928).

In 1945, with passage of the Occupational Disease Act, specific occupational diseases became compensable. Ch. 163, 1945 Colo.Sess.Laws 435. See Miceli v. State Compensation Ins. Fund, 157 Colo. 204, 206, 401 P.2d 835, 837 (1965). However, even for the listed, and therefore compensable, diseases the employer was not liable unless:

There [was] a direct causal connection between the conditions under which the work was performed and the occupational disease, and the disease can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment and can be fairly traced to the employment as a proximate cause and does not come from a hazard to which workmen would have been equally exposed outside of the employment.

Ch. 163, sec. 10, 1945 Colo.Sess.Laws 435 (emphasis added). Compare id. with Industrial Comm'n v. Anderson, 69 Colo. 147, 150-51, 169 P. 135, 136 (1917) (quoting In re McNicol, 215 Mass. 497, 102 N.E. 697 (1913)). This framework was again utilized in 1973 when non-listed diseases became compensable for the first time, and has been carried forward to the present occupational disease definition.

In 1975, the General Assembly...