Baca v. Helm

• Decision Date: 29 May 1984
• Docket Number: 83SC245,83SC242
• Citation: 682 P.2d 474
• Parties: Mike L. BACA, Richard J. Wise, and Peter Nims, individually and as members of the Industrial Commission of the State of Colorado; The Industrial Commission of the State of Colorado; Charles McGrath, Director, Division of Labor; C & H Transportation Co., Inc.; and Vigilant Insurance Company, Petitioners, v. Sammie E. HELM, Respondent. C & H TRANSPORTATION CO., INC. and Vigilant Insurance Company; The Industrial Commission of the State of Colorado; Mike L. Baca, Richard J. Wise, and Peter Nims, individually and as members of the Industrial Commission of the State of Colorado; and Charles McGrath, Director, Division of Labor, Petitioners, v. Sammie E. HELM, Respondent.
• Court: Colorado Supreme Court

Page 474

682 P.2d 474

Mike L. BACA, Richard J. Wise, and Peter Nims, individually

and as members of the Industrial Commission of the State of

Colorado; The Industrial Commission of the State of

Colorado; Charles McGrath, Director, Division of Labor; C

& H Transportation Co., Inc.; and Vigilant Insurance

Company, Petitioners, v.Sammie E. HELM, Respondent.

C & H TRANSPORTATION CO., INC. and Vigilant Insurance

Company; The Industrial Commission of the State of

Colorado; Mike L. Baca, Richard J. Wise, and Peter Nims,

individually and as members of the Industrial Commission of

the State of Colorado; and Charles McGrath, Director,Division of Labor, Petitioners, v.Sammie E. HELM, Respondent.

Nos. 83SC242, 83SC245.

Supreme Court of Colorado En Banc.

May 29, 1984.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol.Gen., Timothy Arnold, First Asst. Atty. Gen., William Levis, Kathryn J. Aragon, Asst. Attys.Gen., Denver, for Industrial Com'n of the State of Colorado.

Robert A. Weinberger, Knapp & Lee, P.C., Denver, for C & H Transp. Co., Inc. and Vigilant Ins. Co.

Peter Watson, Christina M. Habas, Watson, Nathan & Bremer, P.C., Denver, for respondent Helm.

DUBOFSKY, Justice.

We granted certiorari to review an unpublished decision of the Court of Appeals which reversed the decision of the Industrial Commission(commission) and remanded this worker's compensation case for affirmation of the referee's findings.The Court of Appeals ruled that the commission used an incorrect standard of review to set aside the referee's finding that the claimant's work-related injury caused his disability.We vacate the Court of Appeals judgment and remand the case, directing that it be returned to the referee for further findings.

On December 11, 1978, Sammie E. Helm, the claimant, fell against a machine at his work-place, injuring his head and right shoulder.The claimant remained absent from work for several days afterwards because of flu-like symptoms.On December 18, 1978, complaining of stiffness in his shoulder, the claimant consulted Dr. Koller, his family physician, who tentatively diagnosed the claimant as suffering from biceps tendonitis and prescribed treatment appropriate to that condition.When the claimant's condition failed to improve, Dr. Koller referred him to Dr. Maruyama, who examined the claimant on December 21, 1978, and diagnosed a contusion-strain of the right shoulder.Dr. Maruyama immobilized the claimant's shoulder in a sling and told him to perform some gentle exercises and return in two weeks for another examination.Upon the claimant's return on January 4, 1979, X-rays revealed that he was suffering from septic arthritis of the shoulder joint.Because of his toxic condition, the claimant was hospitalized immediately, and Dr. Stedman drained and irrigated two large abscesses in the area of the claimant's shoulder.The claimant remained hospitalized for ten days.Since the operation, the claimant is unable to move his right shoulder joint and motion of the right elbow is somewhat impaired.On July 2, 1979, the claimant returned to work, but he stopped working on December 10, 1979 because of the pain in his shoulder and arm.

Dr. Stedman reported that the claimant's septic arthritis was caused by transient septicemia and that when the claimant injured his shoulder, the shoulder joint became more susceptible to infection.According to Dr. Stedman's report, the septic arthritis would have been very difficult to diagnose at the time of the injury because there was no reason to believe that an infection was present.Other medical reports in the record state that the claimant's injury masked the presence of the infection, making early diagnosis difficult, and that the claimant's disability was due to the injury and infection.One report indicates that the injury had little, if any, bearing on the infection and subsequent complications.According to many of the reports, the claimant's recovery was impeded by his refusal to cooperate fully in managing his diabetes which first was diagnosed in 1970.

After a hearing, the referee, on October 3, 1981, made the following findings:

1.The claimant was injured in a compensable accident on December 11, 1978....

2.The claimant's injury was to his right shoulder.

3.The claimant was initially treated by a Dr. Koller and was subsequently referred to Drs. Maruyama, Stedman and Rowland.

4.Claimant's condition was originally diagnosed as a contusion of the right shoulder.

5.Following this diagnosis the claimant developed an infection in the right shoulder and was subsequently hospitalized for treatment of this infection which hospitalization was paid for by respondents.

6.That claimant was a known diabetic and was diagnosed as being a diabetic by the treating physician Dr. Stedman and Dr. Rowland.

7.That the claimant's injuries superimposed upon his diabetic condition has caused a complete loss of the use of his right arm at the shoulder.

8.That because of the loss of his right arm at the shoulder the claimant is completely unemployable and is therefore permanently and totally disabled....

The referee ordered C & H Transportation Co., Inc.(the employer) and Vigilant Insurance Co.(the carrier) to pay the claimant temporary and permanent total disability benefits.The employer and the carrier petitioned the commission for review.The commission, on August 30, 1982, set aside the seventh finding of the referee--that of causation--stating: "no doctor says that the shoulder infection or the septic arthritis were caused or aggravated by the injury on the job."The commission labeled the referee's finding of causation an "ultimate finding" and held that "the weight of the evidence establishes only that the shoulder injury caused only a 10% impairment of the arm at the shoulder.The referee erred in attributing the entirety of the impairment and resulting permanent total disability to the injury."¹

The claimant appealed, and the Court of Appeals reversed the commission's decision, remanding the case for affirmation of the referee's ruling.The court held that the referee's finding of causation was one of evidentiary fact and that such findings are binding on the commission unless they lack substantial support in the record.Consequently, the court determined that the commission erred in setting aside the referee's finding.The commission, employer, and carrier sought certiorari review by this court.We granted certiorari to determine whether the commission applied the proper standard of review in setting aside the referee's finding of causation.

I.

The standard of review at issue is set out in Ch. 86, sec. 2,§ 8-53-106(2),1981 Colo.Sess.Laws 476, 476-477(the 1981amendment), which provides:

8-53-106.Review--petition--notice--clerical mistakes.(2)(a) The commission, upon referral of a case to it by the director or upon a petition being filed with it to review the director's or a referee's supplemental award, shall review the entire record transmitted by the director in said case and shall enter its award thereon....

(b) The findings of evidentiary fact, as distinguished from ultimate conclusions of fact, made by the director or referee shall not be set aside by the commission on review of the director's or referee's decision unless the findings of evidentiary fact are contrary to the weight of the evidence.The commission may remand the case to the director or referee for such further proceedings as it may direct, or it may affirm, set aside, or modify the order or any sanction or relief entered therein, in conformity with the facts and the law.[²

Prior to the 1981amendment to section 8-53-106(2), 3 C.R.S.(1973), the commission had the authority to review the record transmitted by the director de novo and make evidentiary findings of fact independent of those of the referee.The 1981amendment did not abolish all fact-finding authority of the commission, but it prevents the commission from independently making findings of evidentiary facts when the evidentiary facts found by the referee are not contrary to the weight of the evidence.The commission remains free to make independent "ultimate conclusions of fact."The amendment governs all cases decided by the commission after its effective date, May 26, 1981.Nolan v. Industrial Commission, 664 P.2d 253(Colo.App.1982).

The 1981amendment applies different standards for the commission's review of evidentiary facts and ultimate conclusions of fact.³SeeR & R Well Service Co. v. Industrial Commission, 658 P.2d 1389(Colo.App.1983).This court distinguished evidentiary from ultimate facts in Lee v. State Board of Dental Examiners, 654 P.2d 839(Colo.1982), where we stated:

Findings of ultimate fact, as distinguished from raw evidentiary fact, involve a conclusion of law, or at least a determination of a mixed question of law and fact, and settle the rights and liabilities of the parties.An ultimate finding of fact will be set aside by a reviewing court only if, assuming there is evidence to support the finding, it is "contrary to law," ....

Id. at 844(citations omitted).See alsoRicci v. Davis, 627 P.2d 1111(Colo.1981);Blair v. Lovett, 196 Colo. 118, 582 P.2d 668(1978).In Lee, we held that whether the standard of dental care in Denver includes the retaking of X-rays under certain circumstances is an evidentiary fact; however, whether a violation of that standard of care falls within the statutory category of "gross incompetence" is an ultimate fact.

The parties to the instant case imply in their briefs that the question before us is whether, as a matter of law, causation is an ultimate or evidentiary fact.The claimant asserts, relying on Savio House v. Dennis, 665 P.2d 141(Colo.App.1983), that causation in the context of a worker's compensation claim is an evidentiary fact which is binding on review.The commission, the employer, and the...