Horizon Land Corp. v. Industrial Commission

• Decision Date: 25 June 1974
• Docket Number: No. 73--465,73--465
• Citation: 34 Colo.App. 178,524 P.2d 638
• Parties: HORIZON LAND CORPORATION and United States Fidelity and Guaranty Company, Petitioners, v. INDUSTRIAL COMMISSION of Colorado et al., Respondents. . I
• Court: Colorado Court of Appeals

Page 638

524 P.2d 638

34 Colo.App. 178

HORIZON LAND CORPORATION and United States Fidelity and Guaranty Company, Petitioners, v. INDUSTRIAL COMMISSION of Colorado et al., Respondents.

No. 73--465.

Colorado Court of Appeals, Div. I.

June 25, 1974.

Duane O. Littell Denver, for petitioners.

John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye Asst. Atty. Gen., for respondent Industrial Commission.

SMITH, Judge.

Petitiones, Horizon Land Corporation and United States Fidelity and Guaranty Company, appeal from a final order of the Industrial Commission holding that benefits for permanent total disability due claimant, Rick D. Hobson, were the responsibility of the employer and not the subsequent injury fund under C.R.S. 1963, 81--12--7. We reverse.

The facts in this case are undisputed. In 1967, prior to his obtaining employment with Horizon Land Corporation, the claimant's right leg was amputated below the knee. The claimant wore a prosthesis which permitted him adequate mobility in his job. The compensable injury was the result of an automobile accident which occurred on April 13, 1972, while claimant was acting in the course of his employment. Claimant suffered an injury to the thoracic spine resulting in total paraplegia below the waist. The evidence disclosed by medical reports and testimony from the claimant's physician is uncontradicted and clearly establishes that this subsequent accident would have been 'totally and permanently disabling even if the (right) leg were still present.'

On the basis of this evidence the commission found that the claimant was not entitled to any compensation from the subsequent injury fund and, pursuant to the provisions of C.R.S. 1963, 81--12--8(1), ordered the petitioners to pay compensation both for loss of the remaining leg and for total permanent disability as well.

The issue presented here is one of first impression involving the construction of C.R.S. 1963, 81--12--7. That statute states, in pertinent part:

'(1)(a) When an employee has previously suffered the loss, or total loss of use of one hand, one arm, one foot, one leg, or the vision of one eye, and as a result of an accident arising out of and in the course of his employment he suffers the loss of, or the total loss of the use of, another hand, arm, foot, leg, or the vision of an eye, the loss of the second member shall prima facie constitute total and permanent disability as defined in section 81--12--8, but the employer, or his insurance carrier, if any, shall be liable only for the compensation payable for the member lost in the second accident.

'In addition to such compensation and after the completion of the payments therefor, the employee shall continue to receive compensation at his established compensation rate until death out of a special fund to be known as 'subsequent injury fund' . . ..'

By interpretation of this statute, we must determine from what source total and permanent disability compensation is payable where an employee, who previously has lost a leg, becomes totally paralyzed below the waist as a result of a subsequent compensable accident.

The respondents argue that because the subsequent accident would independently have caused permanent total disability regardless of the prior loss of the claimant's right leg, the employer should be liable for not only the statutorily prescribed compensation for loss of a bodily member but also for the payment of permanent total disability benefits. Acceptance of this argument would require that we equite a previously disabled employee with an able-bodied employee when considering an employer's liability for permanent total disability. To do so would be inconsistent with what we believe to be the...