Masdin v. Gardner-Denver-Cooper Industries, Inc.

• Decision Date: 19 July 1984
• Docket Number: Nos. 83CA1195,GARDNER-DENVER-COOPER,83CA1240,s. 83CA1195
• Citation: 689 P.2d 714
• Parties: Billy E. MASDIN, Petitioner-Cross-Respondent, v.INDUSTRIES, INC., CNA Insurance Companies, Respondents-Cross-Petitioners, and The Industrial Commission of Colorado and The Division of Labor, State of Colorado, Respondents. . IV
• Court: Colorado Court of Appeals

Page 714

689 P.2d 714

Billy E. MASDIN, Petitioner-Cross-Respondent, v. GARDNER-DENVER-COOPER INDUSTRIES, INC., CNA Insurance Companies, Respondents-Cross-Petitioners and The Industrial Commission of Colorado and The Division of Labor, State of Colorado, Respondents.

Nos. 83CA1195, 83CA1240.

Colorado Court of Appeals Div. IV.

July 19, 1984.

Rehearing Denied Aug. 16, 1984.

Douglas R. Phillips, Denver, for petitioner-cross-respondent.

Knapp & Lee, P.C., Robert A. Weinberger, Denver, for respondents-cross-petitioners.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Mary Ann Whiteside, Asst. Atty. Gen., Denver, for respondents.

LEE, Justice. ^*

Claimant, Billy E. Masdin, seeks review of a final order of the Industrial Commission awarding him 25 percent permanent partial disability reduced by the amount of benefits to which he is entitled under an employer-funded disability retirement plan. Employer, Gardner-Denver-Cooper Industries, Inc., and insurer, CNA Insurance Companies, cross-petitioners, allege that the Commission erred in its determination that claimant suffered from a compensable occupational disease. We affirm in part and set aside the order in part.

On March 3, 1981, while deburring a piece of aluminum at work, claimant, who had been employed as a metal finisher for almost 30 years, experienced a sudden episode of acute respiratory distress. Claimant was subsequently diagnosed as suffering from chronic obstructive pulmonary disease (COPD).

At a hearing before the Division of Labor, evidence was presented that claimant, who was then 57 years old, had smoked between one and two and one-half packs of cigarettes daily since he was 14 or younger. One examining physician testified that the majority of claimant's disability was attributable to his years of smoking but that a "significant and unknown portion is attributable to his exposure [to irritants] at work."

A second examining physician testified that x-rays of claimant's lungs revealed changes usually associated with cigarette smoking, and that the type of particulates to which claimant was exposed at his workplace were not, in general, associated with the development of COPD. The physician stated that claimant's COPD would not have developed but for his smoking habit, but that work conditions may have aggravated or accelerated the course of the disease. The physician concluded that 75-85 percent of claimant's lung disease was due to cigarette smoking, and that 15-25 percent was attributable to other factors, including exposure in his job, air pollution, and exposure to dust while motorcycling.

The hearing officer found that claimant was totally and permanently disabled and that he had sustained an occupational disease which was responsible for 25 percent of his total disability. The hearing officer therefore awarded claimant 25 percent of the benefits to which he would have been entitled for permanent total disability. This award was reduced by the $223.22 per month amount to which claimant was entitled under an employer-funded disability insurance plan. By a supplemental order, the hearing officer amended the award to eliminate the $223.22 offset.

The Industrial Commission reversed in part, finding that the proper conclusion to be drawn from the hearing officer's findings of evidentiary fact and the record was that claimant had sustained a 25 percent permanent partial disability as a result of a work-induced aggravation of a nonoccupational disease. In addition, the Commission reinstated the $223.22 deduction for claimant's disability retirement benefits.

On review, claimant first contends that the Commission erred in failing to award him permanent total disability benefits. Cross-petitioners contend that the Commission erred in its determination that claimant sustained a compensable occupational disease. We disagree with both contentions.

Section 8-41-108(3), C.R.S. (1983 Cum.Supp.) defines an occupational disease as one "which results directly from the employment or the conditions under which work was performed, which can be seen to have followed as a natural incident of the work and as a result of the exposure occasioned by the nature of the employment, and which can be fairly traced to the employment as a proximate cause and which does not come from a hazard to which the worker would have been equally exposed outside of the employment."

An occupational disease is present if employment conditions act upon an employee's pre-existing weakness or hypersensitivity so as to produce a disabling condition which...