Tri-State Ins. Co. v. Industrial Commission

• Decision Date: 25 February 1963
• Docket Number: No. 19987,TRI-STATE,19987
• Citation: 379 P.2d 388,151 Colo. 494
• Parties: INSURANCE COMPANY and Sooner Contracting Company, Plaintiffs in Error, v. INDUSTRIAL COMMISSION of Colorado, a corporation; Boyd C. Ezell and Standard Accident Insurance Company, Defendants in Error.
• Court: Colorado Supreme Court

Page 388

379 P.2d 388

151 Colo. 494

TRI-STATE INSURANCE COMPANY and Sooner Contracting Company Plaintiffs in Error, v. INDUSTRIAL COMMISSION of Colorado, a corporation; Boyd C Ezell and Standard Accident Insurance Company Defendants in Error.

No. 19987.

Supreme Court of Colorado, En Banc.

Feb. 25, 1963.

Rehearing Denied March 18, 1963.

Wormwood, O'Dell and Wolvington, Denver, for plaintiffs in error.

Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Peter L. Dye, Denver, for defendant in error Industrial Commission.

Sheldon and Nordmark, James T. Bayer, Denver, for defendant in error Standard Acc. Ins. Co.

DAY, Justice.

We will refer to the parties by name.

Tri-State Insurance Company, by this writ of error, is challenging an award of the Industrial Commission determining that the claimant Boyd C. Ezell is '20% permanently but partially disabled as a working unit' and 'Standard Accident Insurance Company and Tri-State Insurance Company are each liable for payment of compensation for permanent partial disability to the extent of 50% of any amount awarded therefor.' The district court affirmed the award of the commission.

The claimant Ezell has made no appearance in the action because the correctness of the determination by the commission that he sustained a 20% permanent partial disability is not challenged and is supported by the record. Moreover the disability found is the responsibility of the employer Sooner Contracting Company, it being admitted that the entire disability was attributable to accidental injury arising out of and in the course of claimant's employment with Sooner.

The quarrel is between the two insurance companies, each of which provided workmen's compensation insurance for the Sooner Contracting Company at different times, but covering the entire period in which claimant's disability occurred.

Ezell experienced three injuries to his back while working for the Sooner Company. It is agreed that the first injury on May 7, 1958, in Oklahoma, is not before us for review. A second injury to claimant's back occurred on June 15, 1958, while claimant was working for Sooner at the Air Force Academy near Colorado Springs. Ezell, a painter, was pushing a scaffold on which another man was painting, and at one point when Ezell was moving the scaffold he had to lift it over a 2 X 4. His back 'snapped' and he had difficulty in straightening up to a completely erect position. The next day he went to a physician and then went back to work for the employer who gave him 'light work'. He worked on 'easy assignments' for another three weeks through the solicitude of his foreman. He then assumed his regular work.

About a week prior to an incident described as the 'third accident' he began to develop pains in his back, had difficulty in sleeping, and used a heating pad to ease the pain. He was thus treating himself at home when on September 22, 1958, a third accident occurred. In this one Ezell twisted his back and his knee. He sustained a torn cartilage and sprained ligament to the knee which necessitated an operation resulting in permanent partial disability to the leg, the liability for which Standard Accident Company filed an admission and paid compensation, and the knee injury is not an issue in this case.

Shortly after the third injury Ezell's back became so painful that he was totally incapacitated. Eventually surgery was performed on his back. This injury in the lumbar region of the spine revealed without doubt that claimant had a protruded lumbar intervertebral disc, and that the 'slipped disc' caused his disability which one doctor estimated at 15% to the body as a whole and another estimated as high as '30% as a working unit.'

When Ezell was injured in June of 1958 the contracting company was insured as to its workmen's compensation liability by Tri-State Insurance Company. This contract was subsequently terminated, and at the time of the September injury the Standard Casualty Company was the insuror. The commission determined the extent of Ezell's partial disability to be 20% as a working unit, found 'the June 15, 1958, accident and his September 22 accident contributed equally to his ultimate degree of permanent disability', and ordered each of the insurance companies to assume and pay one half of the employer's total admitted liability.

One of the points of error relied upon by Tri-State is that an order of the commission dated August 19, 1959, is final and not subject to change after a later hearing. It is true that the commission made findings in August that as a result of the June accident the claimant did not have any total temporary disability and further that 'During early August, 1958 claimant had completely recovered from his June injury and he had resumed his employment without regard to which task he was assigned.' We dispose of this point, however, by citing other portions of the August 19, 1959, order of the commission which found: '* * * it is too early to determine whether or not he [claimant] is entitled to compensation for permanent partial disability. * * *' and 'that the Tri-State Insurance Company should be and it is hereby dismissed from any responsibility for payment of temporary total disability or medical benefits to the claimant, but that it is to be retained as a party respondent in this case for any pro rata payment of compensation for permanent partial disability which might arise as a result of the June 15, 1958, accident; * * *.' (Emphasis supplied.)

This determination by the commission to retain jurisdiction and to continue the matter until such time as it was able to evaluate the permanent partial disability sustained by claimant likewise was not challenged by petition for review by Tri-State.

The commission records show that claimant filed one claim against the employer, citing both accidents as resulting in the disability of which he complained. There was evidence from at least three physicians plus the claimant...