Opinion
Jan. 2, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondents-appellees Industrial Commission, State of Colo. and James M. Shaffer.
Page 869
Zarlengo, Mott & Zarlengo, Reed L. Winbourn, Albert E. Zarlengo, Denver, for petitioners-appellants.
Edward J. Scheunemann, Denver, for respondent-appellee John mascitelli.
COYTE, Judge.
The employer and its insurance carrier seek review of an order of the Industrial Commission awarding workmen's compensation benefits to claimant. We affirm.
The record discloses that prior to, and on February 24, 1972, the claimant, John Mascitelli, was employed by Stearns-Roger Corporation as a laborer on a construction project. His work involved shoveling sand and gravel, pulling nails from lumber, and using a wheelbarrow. He testified that the work was strenuous and required considerable exertion. On February 24, 1972, he was engaged in shoveling gravel from a pit, and while attempting to push a wheelbarrow up an incline out of the pit, the wheelbarrow stuck in a rut and he had to obtain assistance to remove it from the pit. Immediately thereafter, he experienced pain in his right eye and his vision was blurred. At the time these symptoms occurred, claimant was 59 years of age and had undergone surgery in 1965 to remove a cataract from his right eye; however, he continued to work as a laborer after the operation and encountered no difficulty with his sight prior to February 24, 1972.
Claimant consulted his ophthalmologist as an emergency patient on February 26, 1972. The physician diagnosed the difficulty as a massive retinal detachment which required immediate hospitalization and surgery. He had performed the cataract operation in 1965, had seen claimant continually thereafter, and had no indication that he would have further eye difficulty. The physician testified extensively concerning retinal detachment and stated that older persons are more susceptible to it and that trauma or exertion due to a sudden straining motion is liable to cause such detachment in persons who have had cataract surgery. However, he refused to testify categorically that strenuous activity was the sole cause of claimant's injury. No medical testimony was offered in rebuttal.
The referee found that claimant's injury arose out of his employment and awarded him workmen's compensation benefits. The Industrial Commission adopted the findings and order of the referee. Petitioners contend that the referee's decision is not supported by the evidence because the medical testimony failed to establish with a reasonable degree of medical certainty that the claimant's injury was caused by his employment.
A similar argument was raised and answered in Ringsby Truck Lines, Inc. v. Industrial Commission, 30 Colo.App. 224, 491 P.2d 106, where we said:
'The employer asserts the causal connection must be established with reasonable medical probability. This is the standard upon which a medical expert must base his opinion but it is not the standard on which the commission must make its determination. The evidence must establish the causal connection with reasonable probability, but it need not establish it with reasonable 'medical' certainty. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293.'
Furthermore, the commission need not rely solely upon the medical testimony in order to make a determination with respect to causation. It may consider all the testimony, both lay and medical, and may draw necessary inferences from circumstantial evidence. Industrial commission v. Havens, 136 Colo. 111, 314 P.2d 698; Vanadium Corp. v. Sargent, 134 Colo. 555, 307 P.2d 454.
The testimony that claimant's cataract surgery and his age may have rendered him more susceptible to retinal detachment does not bar recovery of benefits. In Merriman v. Industrial Commission, 120 Colo. 400, 210 P.2d 448, the court said that the fact that claimant was subject to a preexisting condition which was a contributing factor to his disability does not preclude compensation and that the aggravation of a preexisting abnormal or diseased condition may be the basis for an award.
We have examined the record and we conclude that the decision of the commission is supported by sufficient competent evidence.
The order is affirmed.
ENOCH and PIERCE, JJ., concur.