Opinion
No. 77-270
Decided November 3, 1977. Rehearing denied November 17, 1977. Certiorari granted January 9, 1978.
Police officer involved in supervising Denver Public School busing arrangements suffered heart attack and sought workmen's compensation benefits. From award of 10% permanent partial disability, employer sought review.
Order Affirmed
1. WORKERS' COMPENSATION — Heart Attack — Result — Unusual Mental Stress — Course of Employment — Compensable. A heart attack resulting from unusual mental stress or tension arising out of and in the course of employment is compensable under the Workers' Compensation Act.
2. Heart Attack — Unusual Mental Stress — May Occur — Employee — Engaged in Activities — Same General Type — Regularly Follows. For purposes of determining the right to workmen's compensation for an allegedly work-related heart attack, the requisite "unusual or extraordinary" stress may occur while the employee is engaged in activities of the same general type as those in which he is regularly employed.
3. Heart Attack — Determination — Over-Exertion — Fact Issue — For Industrial Commission. In workmen's compensation proceeding relative to allegedly work-related heart attack, the determination of overexertion is a question of fact to be decided by the Industrial Commission, and if that determination is supported by competent evidence it may not be disturbed on review.
4. Findings — Heart Attack Award — No Express Reference — "Overexertion" — Required. In making its findings relative to workmen's compensation claim premised on heart attack allegedly caused by work-related overexertion, the Industrial Commission need not expressly refer to the word "overexertion."
Review of Order from the Industrial Commission of the State of Colorado
James A. May, Francis L. Bury, Robert S. Ferguson, for petitioners.
Pferdesteller, Vondy, Horton Worth, P.C., Anthony L. Worth, for respondents.
Petitioners, City and County of Denver, and Division of State Compensation Insurance Fund, seek review of an Industrial Commission order granting claimant, Thomas Dinsmoore, a 10% permanent partial disability award, to the extent of $7,417.50. We affirm.
The following facts are undisputed: On December 3, 1974, claimant, a sergeant and 25-year veteran of the Denver Police Department, suffered a myocardial infarction. Claimant had previously developed arteriosclerosis and since May 1973, had been following a program of diet and exercise to reduce the risk of that ailment. The Denver police promotional system had been tied up in litigation and there were no promotions to the rank of sergeant from August 1, 1971, to October 16, 1974. Consequently there was a shortage of sergeants, and those available had been working overtime and had assumed the burden of duties not normally assigned to them. For a period of approximately 3 to 3-1/2 months immediately prior to this attack, claimant was given the responsibility for supervising Denver Public School busing arrangements within a certain district, a job which entailed daily meetings with school personnel and area residents. Primarily because of this responsibility, claimant took only three days off and worked 12 of his vacation days in November 1974.
Claimant's treating physician stated, in his opinion, the heart attack was "precipitated by unusual circumstances requiring presence of mind, excitement, tension, . . ." Another doctor testified the heart attack might have been job-related, but was not job-precipitated. He testified that pressure stress is one cardiac risk factor, but felt, in this situation, the attack was the result of normal wear and tear. He noted, however, that because claimant had a pre-existing heart condition, it would take less stress in a given situation to produce a heart attack.
The referee found claimant's heart attack to have been precipitated "by the unusual events prior to December 3, 1974, which aggravated his pre-existing heart condition; that said aggravation was an accident arising out of and within the scope of his employment and that claimant has sustained permanent partial disability of 10% as a working unit fairly attributable to said accident."
I.
Petitioners contend that under the Colorado Workers' Compensation Act, a compensable heart attack may not be shown by evidence of job stress. We disagree.
Colorado, along with approximately a dozen other states, requires, as a prerequisite for workmen's compensation recovery in heart attack cases, proof of overexertion or unusual strain in the course of one's employment. Section 8-41-108(2), C.R.S. 1973; 1A A. Larson, Workers' Compensation Law § 38.30. Courts in several of those jurisdictions have held mental stress and tension sufficient to support awards. See, e.g., McWhorter v. South Carolina Dep't of Insurance, 252 S.C. 90, 165 S.E.2d 365; Louderback v. Dep't Labor Industries, 14 Wash. App. 931, 547 P.2d 889. Cf. Snuggs v. Steel Haulers, 501 S.W.2d 481 (Mo.).
The court in Claim of Major v. New York State Court of Claims, 31 App. Div. 2d 993, 297 N.Y.S.2d 768, sustained an award where a judge, while attempting to clear up a backlog of cases, suffered a heart attack, and stated:
"It has been held that undue anxiety, strain, and mental stress from work are frequently more devastating that a mere physical injury, the courts taking cognizance of this fact in sustaining awards when non-physical impact was present . . . ."
[1] In line with these decisions, we hold that a heart attack resulting from unusual mental stress or tension arising out of and in the course of employment is compensable under the Workers' Compensation Act.
II.
[2] Arguably, the "unusual or extraordinary overexertion" required by § 8-41-108(2), C.R.S. 1973, could be construed to mean that the work causing the attack must be different in nature from that in which the employee is customarily engaged. However, we see neither a policy nor precedential basis for such a limitation, and hold that, for purposes of determining the right to workmen's compensation, "unusual or extraordinary" stress may occur, as it did here, while the employee is engaged in activities of the same general type as those in which he is regularly employed. McWhorter, supra. See also Schechter v. State Insurance Fund, 6 N.Y.2d 506, 190 N.Y.S.2d 656, 160 N.E.2d 901.
III.
[3] The determination of overexertion is a question of fact to be decided by the Commission. Evans v. City County of Denver, 165 Colo. 311, 438 P.2d 698. Where conflicting inferences exist, the choice between them is left to the trier of fact, Archer Freight Lines, Inc. v. Horn Transportation, Inc., 32 Colo. App. 412, 514 P.2d 330, and this court is powerless to disturb the findings of the Commission where they are supported by competent evidence, as they are in this case. Martinez v. Industrial Commission, 32 Colo. App. 270, 511 P.2d 921.
IV.
[4] Contrary to petitioner's contention the Commission, in making its findings, need not expressly refer to the precise word "overexertion." City County of Denver v. Phillips, 166 Colo. 312, 443 P.2d 379.
Order affirmed.
JUDGE COYTE and JUDGE STERNBERG concur.