Cowin & Co. v. Medina, 91CA1400

• Docket Nº: No. 91CA1400
• Citation: 860 P.2d 535
• Case Date: November 05, 1992
• Court: Court of Appeals of Colorado

Page 535

860 P.2d 535 COWIN & COMPANY and United States Fidelity & Guaranty
Company, Petitioners,
v.
Maclovio MEDINA, The Industrial Claim Appeals Office of the
State of Colorado, and Director, Division of
Workers' Compensation, Respondents. No. 91CA1400. Colorado Court of Appeals,
Div. IV. Nov. 5, 1992.
Rehearing Denied Dec. 3, 1992.
Certiorari Denied Oct. 25, 1993.

Glasman, Jaynes & McBride, Ronald C. Jaynes, Christine A. McBride, Denver, for petitioners.

Heckman & O'Connor, P.C., Brett Steven Heckman, Vail, for respondent Maclovio Medina.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., John D. Baird, Asst. Atty. Gen., Denver, for respondents Industrial Claim Appeals Office and Director, Div. of Workers' Compensation.

Page 536

Opinion by Judge CRISWELL.

Cowin & Company, who was the last employer for whom claimant, Maclovio Medina, worked in a mine, seeks review of an order of the Industrial Claim Appeals Office (Panel), which determined that claimant was permanently and totally disabled as a result of an occupational disease. Cowin asserts, first, that the evidence required the Panel to determine the extent to which claimant's disability resulted from a non-occupational condition and to reduce claimant's benefits proportional to the contribution made by that condition to his disability. Alternatively, Cowin asserts that, in order to recover any benefits for an occupational disease, claimant was required to prove that his disability "does not come from a hazard to which [he] would not have been equally exposed outside of the employment" and that claimant presented no evidence to sustain that burden. Because we conclude that Cowin bore the burden of proof upon this issue and that the Administrative Law Judge (ALJ) properly concluded that it did not fulfill that burden, we affirm the Panel's order.

The evidence presented to the ALJ was, with one possible exception, undisputed.

Claimant was a mine worker for most of his working life. In 1977, a physician's examination of claimant led the physician to "suspect" that claimant was suffering from high altitude pulmonary edema (mountain sickness). This is a disease, the cause of which is unknown, which affects the respiratory system. However, from the date of this first diagnosis until 1988, claimant suffered no respiratory symptoms and was, in fact, completely asymptomatic.

Claimant commenced working for Cowin in August 1988, and the evidence is that Cowin's mine was very poorly ventilated. As a result, claimant was exposed to welding fumes and to a spray containing metallic fibers. These two hazards caused claimant's lungs to burn and caused him to cough and produce black sputum.

In October 1988, claimant was hospitalized because of shortness of breath, persistent coughing, and chest pains. He was diagnosed as having bronchitis caused by the hazards encountered in Cowin's mine.

Later, although claimant attempted to engage in other types of physical employment, he was unable to do so. He was determined to be suffering from chronic obstructive pulmonary disease and unable to perform any sort of heavy work.

The ALJ found that, considering claimant's education and experience, the nature of his condition rendered him permanently totally disabled. In reaching this conclusion, the ALJ recognized that claimant's mountain sickness (which is, admittedly, a non-occupational disease, although its cause is unknown) contributed to his disability and that his occupational bronchitis did not directly aggravate this previous condition. Both diseases, however, are afflictions of the respiratory system and possess "overlapping" symptomatology.

Consequently, the ALJ concluded that the holding in Masdin v. Gardner-Denver-Cooper Industries, Inc., 689 P.2d 714 (Colo.App.1984) would normally require that the compensation benefits due to claimant be reduced to the extent that claimant's mountain sickness contributed to his disability. However, the ALJ also concluded that the evidence was insufficient to allow such an apportionment to be made. Hence, the ALJ made no reduction in claimant's award for total disability.

In approving the ALJ's award, the Panel determined that the Masdin apportionment rule was inapplicable because, unlike the disability at issue in Masdin, which resulted from a single disease with two or more causes, claimant's disability results from two separate and independent diseases.

We affirm the Panel's result, but we do not adopt its rationale.

I.

In Masdin v. Gardner-Denver-Cooper Industries, Inc., supra, 689 P.2d at 717, a division of this court adopted the rule that:

[I]f ... there is no evidence that occupational exposure is a necessary precondition to development of the disease with which a claimant is afflicted, then the

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claimant has sustained an occupational disease only to the extent that occupational conditions have contributed to the claimant's overall disability. (emphasis supplied)

In that case, therefore, the court affirmed an award for permanent partial disability, although the claimant was admittedly totally...