T and T Loveland Chinchilla Ranch v. Bourn, 24275

• Decision Date: 07 December 1970
• Docket Number: No. 24275,24275
• Citation: 477 P.2d 457,173 Colo. 267
• Parties: T & T LOVELAND CHINCHILLA RANCH, Employer, the Travelers Insurance Company, Insurer, and the Industrial Commission of Colorado, Plaintiffs in Error, v. Margaret B. BOURN, as the Widow of Byron Bourn, and Lynn Maree Bourn, the minor daughter of Byron Bourn, deceased, by her Mother and Next Friend, Margaret B. Bourn, Claimants in the Matter of the Death of Byron Bourn, Defendants in Error.
• Court: Colorado Supreme Court

Page 457

477 P.2d 457

173 Colo. 267

T & T LOVELAND CHINCHILLA RANCH, Employer, the Travelers Insurance Company, Insurer, and the Industrial Commission of Colorado, Plaintiffs in Error, v. Margaret B. BOURN, as the Widow of Byron Bourn, and Lynn Maree Bourn, the minor daughter of Byron Bourn, deceased, by her Mother and Next Friend, Margaret B. Bourn, Claimants in the Matter of the Death of Byron Bourn, Defendants in Error.

No. 24275.

Supreme Court of Colorado, En Banc.

Dec. 7, 1970.

Rehearing Denied Dec. 28, 1970.

Wood, Ris & Hames, F. Michael Ludwig, Denver, for plaintiffs in error T & T Loveland Chinchilla Ranch and The Travelers Ins. Co.

Duke W. Dunbar, Atty. Gen. John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for plaintiff in error The Industrial Commission of Colorado.

Hill & Hill, Alden T. Hill, Fort Collins, for defendant in error.

GROVES, Justice.

This involves a writ of error addressed to a district court judgment which reversed a denial of a compensation award by the Industrial Commission. Our disposition of this matter results from a different interpretation of the statutory definitions of 'accident' and 'injury' as applied to heart attack cases than that employed by the commission and the court.

The plaintiffs in error are the T & T Loveland Chinchilla Ranch (the employer), the employer's insurer and the commission. The defendants in error are the claimants, being the widow and minor child of Byron Bourn.

Mr. Bourn, age 41 at his death, was employed by T & T as foreman of its chinchilla raising facility near Loveland, Colorado. Bourn had been in T & T's employ for about four months, the first two months as a ranch hand and the remainder of the time as foreman. As supplies of hay used in the ranch's operations were low, Mr. Bourn and the ranch manager drove to a hay company. They there purchased 54 bales of hay, which involved some selection, inspection, and moving of hay bales. They separated the 54 selected bales into three separate loads to be transported back to the chinchilla ranch. Bourn and the manager loaded the first stack of 18 bales into their truck. Each bale weighed 60 to 70 pounds.

They proceeded back to the chinchilla ranch. Upon arriving at the ranch Bourn complained of pains in his chest and arm, and witnesses noticed that he was perspiring and appeared pale. He was driven to him home, and shortly thereafter taken to a hospital. Tests taken at the hospital indicated a coronary occlusion. He died four days later.

A claim for compensation was filed with the commission and, after hearings, was denied. The commission predicated its conclusion upon its findings that 'the decedent's normal duties included handling bales of hay and sacks of feed of comparable weight,' and that 'the decedent did nothing out of the ordinary or unusual to him or his employment.'

The court found that Bourn died as a result of 'unusual and over-exertion while handling hay'; that handling of the hay was not normal or usual in Bourn's employment; and that 'the uncontradicted evidence properly received in this case supports the claim of plaintiffs * * *.' The court then ordered that death benefits be awarded for an injury arising out of and in the course of the employment. While the matter now becomes academic, we think there was evidence to support the commission's findings.

Prior to the enactment in 1963 of C.R.S. 1963, 81--2--9, there were no definitions of the terms 'accident' and 'injury' in Colorado's workmen's compensation statutes. Our opinions firmly established that in order for a heart attack to be compensable it must have been the result of overexertion during the course of the employment. Jasinski v. Ginley-Soper Const. Co., Colo., 458 P.2d 754 (1969); Industrial Comm. v. Bysom, 166 Colo. 502, 444 P.2d 627 (1968); City and County of Denver v. Phillips, 166 Colo. 312, 443 P.2d 379; Blood v. Industrial Comm., 165 Colo. 532, 440 P.2d 775 (1968); Evans v. City and County of Denver, 165 Colo. 311, 438 P.2d 698 (1968); Baca County School Dist. No. Re--6 v. Brown, 156 Colo. 562, 400 P.2d 663 (1965); Industrial Comm. v. Hesler, 149 Colo. 592, 370 P.2d 428 (1962); Huff v. Aetna Insurance Co., 146 Colo. 63, 360 P.2d 667 (1961); Bennett's Claimants v. Durango Furniture Mart, 136 Colo. 529, 319 P.2d 494 (1957); Industrial Comm. of Colorado v. Havens, 136 Colo. 111, 314 P.2d 698 (1957); Industrial Comm. of Colorado v. International Minerals and Chem. Corp., 132 Colo. 256, 287 P.2d 275 (1955); Peter Kiewit Sons' Co. v. Industrial Comm., 124 Colo. 217, 236 P.2d 296 (1951); Black Forest Fox Ranch, Inc. v. Garrett, 110 Colo. 323, 134 P.2d 332 (1943); Industrial Comm. v. McKenna, 106 Colo. 323, 104 P.2d 458 (1940); Industrial Comm. of Colorado v. Wetz, 100 Colo. 161, 66 P.2d 812 (1937); United States Fidelity & Guaranty Co. v. Industrial Comm., 96 Colo. 571, 45 P.2d 895 (1935); and Ellerman v. Industrial Comm., 73 Colo. 20, 213 P. 120 (1923).

The 1963 enactment provided as follows:

'81--2--9. Definitions.--(1) The term 'accident' as used in this chapter shall mean and include one or more determinate act or acts of a traumatic nature, which caused an injury.

'(2) The term 'injury' or 'injuries' as used in this chapter shall mean and include only trauma to the physical structure of the body and such disease or infection as naturally results therefrom. The terms shall not be construed to include disability or death due to natural causes occurring while the employee is at work or occupational diseases including but not limited to the occupational diseases covered by chapter 81, article 18, Colorado Revised Statutes 1963.'

Industrial Commission v. Bysom, 166 Colo. 502, 444 P.2d 627 (1968) and Industrial Commission of Colorado v. Milka, 159 Colo. 114, 410 P.2d 181 (1966), held that the definitions thus placed in the law did not change the 'overexertion' rule. In 1965 the General Assembly made substantial changes in the wording of these definitions, as follows:

'(1) The term 'accident', as used in this chapter, shall mean an unforeseen event, occurring without the will or design of the person whose mere act causes it; an unexpected, unusual, or undesigned occurrence; or the effect of an unknown cause, or, the cause being known, an unprecedented consequence of it.

'(2) The terms 'injury' or 'injuries', as used in this chapter, shall not be construed to include disability or death due to occupational diseases including, but not limited to, the occupational diseases covered by article 18 of chapter 81, C.R.S.1963.' 1965 Perm.Supp., C.R.S.1963, 81--2--9.

The claimants contend that the 1965 amendment eliminates the necessity of overexertion as a cause of the heart condition. The defendants in error respond to the argument by calling attention to the fact that Evans v. City and County of Denver, 165 Colo. 311, 438 P.2d 698 (1968), involved overtime work and subsequent death by reason of myocardial infarction, all of which occurred subsequent to the effective date of the 1965 amendment. They further draw attention to Jasinski v. Ginley-Soper Const. Co., Colo., 458 P.2d 754 (1969), which stated that the claimant must prove overexertion and cited Evans as authority.

Jasinski involved a death occurring on August 4, 1964, prior to the adoption of the 1965 amendment. It cannot, therefore, bear upon the interpretation of the 1965 amendment.

In Evans the commission found that the deceased's activities did not constitute overexertion and that his 'employment did not cause or contribute to his heart attack.' The following statement was made in the opinion:

'In Colorado, we are committed to the doctrine that in order to render a 'heart attack,' incurred in the course of employment, compensable under the Workmen's Compensation Act, the claimant must show (1) 'over-exertion' by the decedent, arising out of and in the course of his employment, and (2) that such 'over-exertion' proximately caused the death. (Cases cited) Such 'over-exertion' must be more than the mere exertion attendant upon the usual and ordinary course of the employment.'

The opinion then states that the questions of overexertion and causal connection were questions of fact to be decided by the commission and that there was competent evidence to support the commission's finding. The judgment was affirmed.

The opinion in Evans does not mention any statute, and, particularly, does not mention any statutory definitions. We have studied the briefs in Evans. They too contain an entire absence of any mention of any statute, and they do not mention any definition of 'accident' or 'injury.' The brief of the claimant mentions repeatedly that, in order for the claimant to recover, overexertion must be proven. It was the position of the claimant-widow as stated in her brief that the 'uncontroverted evidence showed the the decedent had been engaged in overexertion arising out of and in the course of his employment.' The argument made by Denver, the State Compensation Insurance Fund and the Industrial Commission was that there was competent evidence to support the commission's finding that there had not been overexertion. There was complete agreement between all parties that overexertion was an essential prerequisite.

In the light of the presentation--and lack of presentation--to this court in Evans, we consider it no authority, one way or another, as to what change may have been wrought by the 1965 amendment pertaining to the definitions. We approach the effect of that amendment now for the first time.

It is to be noted that the 1963 definitions of 'accident' and 'injury' made them inseparably linked to trauma, and that this traumatic connection was entirely eliminated in the 1965 amendment. We see that in the 1965 definition of 'accident' there are the terms, 'an unforeseen event, occurring without the will or design of the person whose mere act causes it' and 'an unexpected, unusual, or undesigned occurrence.' Our study of...