Opinion
April 2, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
H. Myers Bumgardner, Pueblo, for respondent Linda Armstrong.
Francis L. Bury, Robert S. Ferguson, James A. May, Denver, for petitioners.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent Industrial Commission of Colo.
SILVERSTEIN, Chief Judge.
Claimant, Linda Armstrong, sought workmen's compensation benefits for a knee injury allegedly sustained in a fall four days after claimant's right ankle had been injured in an admitted accident in the course of her employment with petitioner, State Home and Training School. After three hearings, in which the claimant and two attending physicians testified, the referee concluded that:
'the claimant's fall at home on May 14, 1972 was caused by her previous injury to her foot on May 10, and that said fall injured claimant's right knee resulting in the subsequent surgery to said knee and is thus causally related to her industrial accident.'
The Industrial Commission approved, afffirmed, and adopted the referee's order. Petitioners seek review of the Commission's final order on the ground that claimant failed to establish that the injury to claimant's right knee arose out of her employment. We affirm the order of the Commission.
Petitioners assert that the award of the Commission is based upon conclusions contrary to the evidence and the law. The evidence shows that claimant was injured in the course of her employment on May 10, 1972, when one of the residents of the school stepped on her right foot. She was treated for contusion and possible ligament tears the following day by Dr. Wexler, who applied a four-inch elastic pressure dressing to her ankle.
Claimant testified that she had trouble walking between May 10 and May 14. She also testified that she fell on May 14, 1972, as she was descending the basement stairs of her mother's home:
Q: 'Tell the Referee how this fall happened.'
A: 'Well, I started down my mother's stairs to the basement, to the clothes dryer, to take some clothes out, and I was about four steps from the bottom and my ankle gave out, and I was walking sideways leading with my right foot, and I fell--it gave out and I just tumbled down the right side, hitting my right leg and right side of my body, down to the bottom of the stairs.'
Q: 'And how did that affect you?'
A: 'Well it hurt my ankle more, of course, and it hurt my knee, and when I called Dr. Wexler I told him that over the phone.'
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Q: '. . . And was it just weakness in your ankle that caused you to fall?'
A: 'Yes, sir, it wouldn't take any pressure or weight.'
There was also testimony by the climant that the basement steps were clear and free of debris at the time she fell.
Dr. Wexler testified that claimant came to the emergency room at Parkview Episcopal Hospital at approximately 9:44 p.m. on May 14 and stated that she had fallen down the stairs. At that time he applied a '4-inch Gelocast short leg boot plus 4-inch adhesive elastic bandage' to her ankle. The testimony is in conflict as to whether claimant then complained of an injury to her knee.
Dr. Crosson, who performed the surgery on Mrs. Armstrong's knee on June 26, testified that with or without a cast, claimant's leg could have 'given away' at the time of the fall on May 14. He also testified that the arthrogram taken of claimant's knee on June 22 showed a cartilage tear of less than six months' duration.
Petitioners argue that claimant's second injury is analogous to that of the claimant in Post Printing & Publishing Co. v. Erickson, 94 Colo. 382, 30 P.2d 327, who, with a weakness in his right knee, ventured out onto a snowy sidewalk and injured his ankle. In reversing the award of the Industrial Commission, the court there held that the second injury was due to an efficient intervening cause and did not arise out of or in the course of claimant's employment.
The Commission argues, however, that claimant Armstrong's second injury was not caused by an efficient intervening cause such as ice or snow but, rather, was caused by the 'giving away' of claimant's ankle which had been weakened by her compensable accident.
In Standard Metals Corp. v. Ball, 172 Colo. 510, 474 P.2d 622, claimant's right leg was fractured in an admitted accident in the course of his employment. Thereafter, claimant underwent corrective surgery, including a bond graft. Some 14 months later, the claimant slipped and fell on an icy sidewalk, refracturing his right leg. The medical testimony in that case showed that the second fracture probably would not have occurred except for the weakened condition of the bone and the weakened musculature of the leg caused by the initial fracture and resulting surgery. The commission found that there was a causal connection between the second fracture and the original compensable injury, and its compensation award was upheld by the Colorado Supreme Court:
'Once the injury is determined to have arisen out of and during the course of claimant's employment obviously the results flowing proximately and naturally therefrom come under the aegis of the statute.'
In the instant case, the Industrial Commission's finding that claimant's knee injury was causally related to her earlier compensable ankle injury is supported by competent evidence or by proper deductions or inferences therefrom. This finding is therefore conclusive on review, Industrial Commission v. Allen, 28 Colo.App. 546, 478 P.2d 702, and is sufficient to support the award of the Commission.
Order affirmed.
SMITH and RULAND, JJ., concur.