Great Am. Indem. Co. v. State Compensation Ins. Fund

• Decision Date: 02 September 1941
• Docket Number: 14986.
• Citation: 108 Colo. 323,116 P.2d 919
• Parties: GREAT AMERICAN INDEMNITY CO. v. STATE COMPENSATION INS. FUND et al.
• Court: Colorado Supreme Court

116 P.2d 919

108 Colo. 323

GREAT AMERICAN INDEMNITY CO. v. STATE COMPENSATION INS. FUND et al.

No. 14986.

Supreme Court of Colorado

September 2, 1941

In Department.

Error to District Court, City and County of Denver; George F Dunklee, Judge.

Proceeding under the Workmen's Compensation Act by William L Haverty, claimant, opposed by the Oriental Refining Company employer, and the Great American Indemnity Company, insurance carrier, and the State Compensation Insurance Fund. To review a judgment of the District Court affirming an award of the Industrial Commission of Colorado granting compensation to claimant, the Great American Indemnity Company alone brings error.

Affirmed.

Wolvington & Wormwood, of Denver, for plaintiff in error.

Gail L Ireland, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., and Morry M. Sterling, Asst. Atty. Gen., for Industrial Commission.

Harold Clark Thompson and Louis Schiff, both of Denver, for State Compensation Ins. Fund.

OTTO BOCK, Justice.

This controversy, a workmen's compensation case, involves a claim for compensation for an eye burn, medically designated 'conjunctivitis,' resulting from exposure to arc light flashes while the employee was working near some welders. The Industrial Commission found in favor of the claimant and awarded compensation in conformity with its findings. In an appropriate legal action the district court affirmed this award.

While claimant, William L. Haverty, was hired as a welder's helper, he did not serve in that capacity, but was required to do general labor, such as digging ditches, carpentry and mechanical work, in proximity to extensive acetylene welding operations. At the hospital, when interviewed by a representative of the employer, he stated that he first noticed the burn May 17, 1940, but subsequently corrected this statement by definitely fixing the date as May 10, 1940. He left work May 25, 1940, returned to work July 6 of the same year, and was awarded compensation from June 5, 1940, to July 5, 1940, inclusive.

No permanent disability is involved, the matters presented being the happening of an accident, and the question as to which of two insurance carriers is liable should it be judicially determined that the employee sustained a compensable accidental injury within the meaning of the Workmen's Compensation Act. It is undisputed that the Great American Indemnity Company, plaintiff in error, was the insurer of the employer for this hazard until noon, May 11, 1940. The company denies liability after this date, and asserts that the State Compensation Insurance Fund became the carrier of the risk. The Industrial Commission found that the accident occurred May 10, 1940. Plaintiff in error is here seeking reversal of the judgment.

The points urged as requiring reversal may conveniently be grouped as follows: (1) No accident within the meaning of the Workmen's Compensation Act, '35 C.S.A.C. 97, § 280 et seq.; (2) if there was an accident the disability did not extend over ten days; (3) the accident occurred some time after noon May 11, 1940, at which time plaintiff in error was not the carrier of the risk; (4) that if there was an accident the date was May 25, 1940, when claimant was compelled to leave his work.

Counsel for the indemnity company first contend for nonliability, in that claimant suffered from an occupational disease rather than an accident. 'Occupational disease' is defined in Industrial Commission v. Ule, 97 Colo. 253, 256 48 P.2d 803, and the evidence in the instant case does not being the injury involved within that definition. If claimant had been working as a welder there perhaps would be some basis for the contention advanced, but that was not his 'particular employment' or occupation. He was engaged in doing general work; nor was this injury, under the...