Colorado Fuel & Iron Corp. v. Industrial Commission

• Decision Date: 02 March 1964
• Docket Number: No. 20767,20767
• Parties: The COLORADO FUEL AND IRON CORPORATION, Plaintiff in Error, v. The INDUSTRIAL COMMISSION of Colorado, and State Compensation Insurance Fund, and Hattie M. Holman, for herself and on behalf of her minor daughter, LaVella Holman, Defendants in Error.
• Court: Colorado Supreme Court

Page 174

392 P.2d 174

154 Colo. 240

The COLORADO FUEL AND IRON CORPORATION, Plaintiff in Error, v. The INDUSTRIAL COMMISSION of Colorado, and State Compensation Insurance Fund, and Hattie M. Holman for herself and on behalf of her minor daughter, LaVella Holman Defendants in Error.

No. 20767.

Supreme Court of Colorado, En Banc.

March 2, 1964.

Welborn, Dufford & Cogburn, Denver, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for defendant in error Industrial Comm. of Colorado.

Harold Clark Thompson, Alious Rockett, Francis L. Bury, Denver, for defendant in error State Compensation Ins. Fund.

Edward J. Scheunemann, Denver, for defendant in error Hattie M. Holman.

PRINGLE, Justice.

On December 11, 1961, Richard Holman died from asphyxiation caused by the inhalation of a lethal dose of carbon monoxide gas while working for the Colorado Fuel and Iron Corporation and the sole question presented by this writ of error is whether his widow and surviving minor child are entitled to benefits under the Workmen's Compensation Act, CRS '53, 81-1-1 et seq., or whether the exclusive remedy lies under the Occupational Disease Disability Act, CRS '53, 81-18-1 et seq. The employer in this case is self-insured under the Workmen's Compensation Act while it is insured with the State Compensation Insurance Fund under the Occupational Disease Disability Act. The Industrial Commission awarded benefits under the Workmen's Compensation Act and this award was affirmed by the district court.

The facts surrounding Holman's death are not in dispute and we deem it sufficient in this regard to quote from the referee's findings:

'The facts surrounding the immediate occurrence of this unfortunate accident indicate that the decedent and two other employees were engaged in charging the furnace in the casting foundry of the employer. Their work was such that they would induce iron into the furnace by means of a charging bucket lowered through a cupola, placing this material atop fuel and limestone which were heated from a source below the charging floor. As a consequence of the heating and chemical changes in the fuel and limestone contained below the cupola floor, gases came through the cupola extending above the charging floor. When a hoist of material was operated to bring it into the charging area it was lowered with a bell, the clevis of which was engaged to a hook on the hoist. On this particular day the clevis and hoist hook became disengaged allowing the bell to drop some six feet into the cupola area atop the iron being induced into the foundry furnace. When this occurred, the heat previously being applied to the materials was stopped, thus creating what is known as a 'cool charge.' This, however, did not stop the previously-created fumes from rising through the area where the disengaged bell was lying atop the iron. In some mistaken thought to hasten reports of re-engaging the hook hoist in the clevis of the bell, the decedent clambered over the sides of the cupola and down into its interior to physically do this job. At this point he was noticed by his foreman to be standing in this area, who immediately ran toward the cupola window. As he was thus running, claimant (sic) fell apparently in an unconscious state to the iron atop the furnace. The foreman made an attempt to reach his side but also quickly became unconscious.'

At the hearing before the referee, an industrial hygiene engineer employed by the Colorado Fuel and Iron Corporation testified that tests performed on a cupola adjoining that in which Holman met his death indicated percentages of carbon monoxide were present in the atmosphere within the cupola ranging from 3.3 per cent to 4.0 per cent and that a similar concentration would necessarily exist in the other cupola. The record discloses that such a high concentration of carbon monoxide would cause death within one or two minutes upon exposure. The record further discloses that carbon monoxide tests were not normally made on cupolas because the employees of the company were not expected to be inside the same incident to their employment.

Dr. Robert Young, a physician and surgeon employed by the Colorado Fuel and Iron Corporation, testified as follows:

'Q: Now, doctor, assuming that this man did die as a result of carbon monoxide exposure, that exposure was of a very short duration and a single exposure, was it not?

'A: I think it was an instantaneous affair. By that I mean it was at the time. Yes. That was not an accumulative affair.

'Q: In other words, there is no history of anything that you were able to obtain that this man had been exposed to carbon monoxide posioning (sic) over a period of time? This was not an accumulative thing?

'A: No. I have known--I know Mr. Holman and have taken care of him in the emergency hospital for various minor injuries over the years in the past and this was a big, healthy man.

'Q: Now, if, in fact, the man did die as a result of carbon monoxide exposure, it was an exposure of only a very few minutes?

'A: It would have had to be. Yes, sir.'

The employer's only contention here is that Holman died as a result of 'poisoning by carbon monoxide,' one of the diseases listed in the Occupational Disease Disability Act as being compensable under that Act, and that even though the poisoning resulted from an accident, benefits must be awarded exclusively under the Occupational Disease Disability Act and not under the Workmen's Compensation Act.

The Occupational Disease Disability Act of 1945 provides in pertinent part:

"Occupational disease' means only the diseases enumerated and specified in section 81-18-9.' CRS '53, 81-18-4(4)

'Occupational diseases listed.--The following diseases only shall be deemed to be occupational diseases, and compensation as provided in this article shall be payable for disability or death of an employee resulting from such diseases and from no others:

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'(16) Poisoning by carbon monoxide.

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CRS '53, 81-18-9, as amended.

'Compensation exclusive remedy.--In all cases where the employer and the employee are subject to the provisions of this article, and where the employer has complied with the provisions of this article regarding insurance, the liability of the employer under this article to such employee or to his spouse, children, parents, dependents, next of kin, personal representatives, guardian or any others for any injury to health or on account of death from any disease set forth in section 81-18-9 in any way contracted, sustained, or incurred by such employee in the course of, or because of, or arising out of his employment shall be exclusive and shall be in place of any and all civil liability whatsoever at common law or otherwise.' CRS '53, 81-18-8.

We do not agree with the employer that the above sections of the Occupational Disease Disability Act operate so as to defeat the claim of Holman's widow and child under the Workmen's Compensation Act under the circumstances of this case. At the heart of the matter is the essential nature of the incident causing Holman's death and in our view his death was caused by an 'accident' as that term is used in connection with the Workmen's Compensation Act and not by an 'occupational disease.'

In 1935 this Court had occasion to define an 'occupational disease' in Industrial Commission v. Ule, 97 Colo. 253, 48 P.2d 803. At that time disability or death from an 'occupational disease' was not compensable by statute. That...