Industrial Com'n of Colorado v. Wetz

• Decision Date: 15 March 1937
• Docket Number: 14057.
• Parties: INDUSTRIAL COMMISSION OF COLORADO et al. v. WETZ et al.
• Court: Colorado Supreme Court

66 P.2d 812

100 Colo. 161

INDUSTRIAL COMMISSION OF COLORADO et al. v. WETZ et al.

No. 14057.

Supreme Court of Colorado, En Banc.

March 15, 1937

Error to District Court, City and County of Denver; Otto Bock Judge.

Action by Edith R. Wetz and others to review the findings and award of the Industrial Commission of Colorado, denying plaintiff compensation for the death of Eugene W. Wetz, an employee of the City and County of Denver. To review a judgment setting aside the commission's order and remanding the case with directions to enter an award for plaintiff, the commission employer, and State Compensation Insurance Fund bring error.

Affirmed.

BOUCK and HOLLAND, JJ., dissenting.

Byron G. Rogers, Atty. Gen., and Louis Schiff Asst. Atty. Gen., for plaintiff in error Industrial Commission.

Teller Ammons and Richard F. Ryan, both of Denver, for plaintiff in error City and County of Denver.

Harold Clark Thompson, of Denver, for plaintiff in error State Compensation Insurance Fund.

Elmer P. Cogburn and Christian D. Stoner, both of Denver, for defendants in error.

YOUNG Justice.

The defendants in error, mentioned herein as claimants, filed a claim Before the Industrial Commission under the Workmen's Compensation Act (C.L. § 4375 et seq., as amended) for death benefits to which they say they are entitled as dependents of one Eugene W. Wetz, whom they allege came to his death as the result of an accident, arising out of and in the course of his employment by the City and County of Denver, his employer. The employer carried insurance with the State Insurance Fund, designated in this opinion as insurer. Reference also will be made to these parties as defendants. The claimants, being unsuccessful Before the commission, instituted an action in the district court to review the findings and award, which court set aside the order of the commission denying death benefits and remanded the case with directions to enter an award in favor of claimants. Defendants prosecute a writ of error to review that judgment.

Due to the peculiarity of the commission's findings and to the fact that the issues may only be determined from the testimony, we deem it advisable to set forth such testimony in some detail in order that the issues be clearly presented and the correctness or incorrectness of the judgment of the trial court determined.

The following facts clearly appear from the record and are undisputed: On the 15th of February, 1936, decedent was working for the City and County of Denver in the highway department. He reported for work at about 7:30 in the morning. About 9:15 the foreman sent him across the street to start a Fordson tractor of the street cleaning department. It was a cold morning, the temperature being approximately zero or slightly under. On that morning from fifty to fifty-five trucks had been started in the building where the tractor was standing; the building was large and had been kept closed except when the doors were opened to permit the egress of trucks. The gas discharged by the motors was heavy and hung close to the floor. Such discharge from the motors produces some carbon monoxide which is poisonous and a large amount of carbon dioxide, which is not poisonous, but by occupying space in the lungs prevents the entrance of a normal amount of oxygen. The examination of one of the witnesses, who was working in the building, was in part as follows: 'Q. What effect did that have on you that particular morning, if any? A. Well, I absorbed a lot of gas and there was a lot of it that morning and it kind of knocked me out; I don't need a lot of it.' Another witness testified that it 'knocked him out' when he went into the garage. The foreman who ordered decedent to start the tractor was asked: 'What is the first thing you do; that is, if you were sent over to start a Fordson tractor or truck?' He responded as follows: 'Well, the first procedure, of course, as we go over there, we take a hot shot battery to help along in case we can't start it, but we go over it and open up the circuit there, keep the spark retarded, pull the choke and get around and open the throttle a little bit and get around in front and crank it. If we are unable to start it then we take the hot shot battery. We disconnect the low tension and hook on the hot shot battery onto the coil, then we go through the same procedure, of course, of cranking.' After outlining the foregoing as the customary procedure for starting a tractor, the foreman was asked if it required considerable effort to crank one of these tractors and answered in the affirmative. Another witness was asked: 'Is it customary for them to attempt to crank the tractor Before they connect these hot shot batteries? That is, for a mechanic to turn it over once or twice to see if it will run Before they connect their hot shot? He answered: 'I would say it would be customary, because it takes some time to connect a hot shot, and if a man is in a hurry he is going to start it the quickest way possible.'

After decedent arrived at the tractor, one of the men passing by saw him standing with his left hand on the radiator cap in the position in which a man stands to crank the motor. He did not see decedent actually crank it. This was about ten minutes Before he was told that Wetz 'was knocked out.' Shortly after decedent had been directed to start the tractor, the man who was to take it out found him sitting on the floor by the side of the machine with a hot shot battery between his legs and with his head lying over on his shoulder; being unable to arouse him, he called for assistance and Wetz was carried into an office nearby. A doctor was summoned immediately, who, upon arrival, pronounced the man dead.

Carbon monoxide poisoning as a sufficient independent cause of death, and electric shock from the battery and coils as a contributing cause, are conceded by claimants, in view of the medical testimony, to be eliminated from the case. They now place their reliance on overexertion, under the conditions shown to exist, as the proximate cause of dilatation of the heart and consequent death.

The doctor who performed the autopsy was the only one of the several called as witnesses who saw the conditions thereby disclosed. All the others testified hypothetically. He testified that the examination showed a dilatation of the right auricle of the heart which was caused by something of a sudden nature and of recent origin as evidenced by no degenerative changes in the liver which are always found where such a condition is of long standing; that he found a foramen ovale or opening from the left to the right auricle; that it was covered by a flap on the inside of the left auricle; that such a condition results from a failure of complete closing of a prenatal opening between the two cavities and is found in 25 per cent. of all autopsy cases; that the opening was small; that it was surrounded by scar tissue; that there was no evidence of a recent breaking loose of the flap covering the opening; that the flap was on the left auricle side of the opening where the pressure is greater than in the right auricle, thus tending to keep the flap closed; that from his examination the heart muscle grossly appeared to be in good condition; that in his opinion the foramen ovale as he found it was negligible in determining the cause of death; that he did not believe it had anything to do with the death; that it was so well closed that not more than a drop or two of blood ever got through. This doctor further testified that overexertion could cause the dilatation; that the probability was in favor of the death being caused by overexertion; that the atmospheric condition could have something to do with it and could alone cause it; that carbon dioxide (carbon monoxide being ruled out as the cause of death by a blood test) present in the air would make it harder to get oxygen and would have a tendency to weaken the heart to some extent; that the breathing of air filled with carbon dioxide and a small amount of carbon monoxide are factors that can be contributory to dilatation of the heart; that sometimes a foramen ovale causes dilatation but not one such as this; that dilatation does not occur without overexertion; that there was no condition intrinsic in the heart that would cause death. The foregoing was the testimony of the autopsy surgeon based upon his actual examination and upon deceased's condition as disclosed by the autopsy.

The lay testimony, including that of the widow of deceased, was to the effect that Wetz' health had been good and that he never had complained of any trouble.

Dr. Buck made only an outward examination of the body. His entire testimony with respect to the cause of death was to the effect that 99 per cent. of sudden deaths are due to heart trouble and that as to this particular case he could not tell the cause of death from an inspection of the body but would want an autopsy.

Dr. Blanchard's testimony showed merely the delivery by him of a sample of deceased's blood to Dr. Freshman for examination, and the latter's testimony was to the effect that death was not caused by carbon monoxide poisoning.

Dr. Yegge testified that a heart dilatation might develop from a foramen ovale, because under some conditions blood might go through the opening even with a flap over it, if the flap were not adherent, and that he did not believe this one was. Asked as to whether the man died from overrexertion, he answered: 'From the testimony this morning I do not believe that I could say whether it was natural causes or overexertion.'

Dr Burnett testified in effect that patent (unclosed) ovale is a fairly common abnormality and that an enlargement of the right auricle associated with it means a strain...