Distinguished
Distinguished by of the Death of Snow v. Industrial Commission, 172 Colo. 133 (1970)
We reject the argument that this case is governed by Ind. Comm. v. Havens, 136 Colo. 111, 314 P. 2d 698.
The opinion
Mr. Justice Hall
dissenting:
I respectfully dissent from the majority opinion.
Claimant’s right to compensation cannot be sustained unless the evidence establishes that death of the employee “is proximately caused by accident arising out of and in the course of his employment * * *” C.R.S. ’53, 8-13-2. There is ample proof of the fact that the immediate cause of death was “coronary occlusion.” I find no evidence to justify a finding or conclusion that the “coronary occlusion” was “proximately caused by an accident arising out of and in the course of his employment.”
The following language from the majority opinion:
“Claimants failed to introduce evidence as to whether overexertion results in coronary occlusion and defendants introduced no evidence at the hearing on this point” (emphasis supplied), makes it clear that there is no proof on the question as to the cause of the “coronary occlusion,” which admittedly was the immediate cause of death. In spite of this lack of evidence, the majority opinion holds that as a matter of law the overexertion caused the coronary occlusion, thus indulging in presumptions never before deemed applicable in a workmen’s compensation case.
Quoting further from the majority opinion: “It also appears that the only pertinent evidence before the referee was that Havens died after “unusual exertion” and after being hit by the handcar during the course of his employment.” (Emphasis supplied.)
This evidence, admittedly “the only pertinent evidence,” may well serve to fix the time of death but does not even intimate “the proximate cause” of death. Un *128 derstandably, the referee and commission, faced with this lack of evidence as to proximate cause, refused to make a finding that death was proximately caused by overexertion.
Another quote from the majority opinion: “Here the evidence is undisputed. Trauma and overexertion could unquestionably have caused Havens’ death.”
The problem before us is not what could have caused the death but rather what did cause the death. It is the function of the referee and commission to find the facts from the evidence, not from lack thereof; and their findings should not be disturbed unless clearly contrary to the evidence. In my humble opinion the findings of the referee, approved by the commission, are clearly right. The contrary findings by the trial court and the majority of this court rest on lack of evidence, conjecture, surmise and at best are a guess as to tvhat could have caused the death. The judgment should be reversed and the claim for compensation denied.
I am authorized to state that Mr. Justice Knauss and Mr. Justice Day join in.this dissent.