Martin Marietta Corp. v. Terrell
| Decision Date | 08 March 1965 |
| Docket Number | No. 21147,21147 |
| Citation | 399 P.2d 791 |
| Parties | MARTIN MARIETTA CORPORATION and Continental Casualty Company, Plaintiffs in Error, v. Johnnie W. TERRELL and Industrial Commission of Colorado, Defendants in Error. |
| Court | Colorado Supreme Court |
Margaret R. Bates, Denver, for plaintiffs in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for defendant in error Industrial Commission.
George T. Ashen, Denver, for defendant in error Johnnie W. Terrell.
This is a workmen's compensation case.
The Industrial Commission adopted the referee's finding that 'claimant did sustain an accidental injury arising out of and in the course of his employment while operating the fork lift after the solid rubber tires had been mounted; * * *.'
The only question before this court is whether the record supports the findings of the Commission and the award of compensation.
We answer this question in the negative.
It is not disputed that claimant had a protruded intervertebral disc which required surgery. The plaintiffs in error assert that claimant did not sustain the burden of proof that his injury was caused by an accident.
We turn to the record in the case. The evidence does not establish any causal connection between an industrial accident, as that term has been defined, and the back condition. Medical evidence touching on this vital issue reveals that claimant's physician would not give a medical opinion beyond the statement that it was possible that claimant's condition was caused by riding on the fork lift. Claimant testified that he did not have any specific injury, and that he did not attribute his difficulty to any one incident or accident; that he noted a gradual onset of back pain during the approximately twenty months of his employment, and that the pain subsided or was alleviated with rest.
Pertinent testimony by the only medical witness produced by the claimant was the following:
The medical expert in his written report said:
'It is quite reasonable to assume that the recurrent minor injuries to the low back region by riding on the fork lift may have caused this condition.'
There is no proof offered by claimant that goes beyond the words used by the medical expert such as 'quite possible,' 'very suggestive,' 'reasonable to assume' and 'may have caused.'
Medical opinion similar to that noted above has been held insufficient to establish a claim in a substantial number of workmen's compensation cases ruled on by this court. They are: United States Fidelity and Guaranty Co. v. Industrial Comm., 122 Colo. 31, 219 P.2d 315, where the following testimony was held to be insufficient: '[T]he excitement may have been a precipitating factor.'
In Deines Bros. v. Industrial Comm., 125 Colo. 258, 242 P.2d 600, a case involving foreign material in a claimant's eye, the testimony which did not support that claim was 'It [the foreign object] might have been a piece of wood.'
In Maryland Casualty Co. v. Kravig, 153 Colo. ----, 385 P.2d 669, this court said:
'We have held that statements such as 'could happen' 'might happen' 'it is a possibility' * * * and similar expressions are evidences of mere possibilities of a fact having occurred or having existed and are not sufficient to support a judgment.'
Claimant would have us bring the...
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