Opinion
No. 19,597.
Decided March 20, 1961. Rehearing denied April 10, 1961.
From denial of their claim for benefits under the Workmen's Compensation Act, the claimants bring error.
Affirmed.
1. WORKMEN'S COMPENSATION — Accident — Heart Failure — Proof. In cases of heart failure claimant must prove more than the mere exertion attendant upon the usual and ordinary requirements of the employment; over exertion must be established.
2. Evidence — Heart Failure — Usual Activity — Findings — Review. Where employer's evidence disclosed that the exertion of changing a tire was a normal part of employee's duties, and medical testimony showed a prior heart condition, a finding by the Industrial Commission of non-liability was justified and is binding on the courts.
Error to the District Court of the City and County of Denver, Hon. Edward E. Pringle, Judge.
Mr. L.F. BUTLER, for plaintiffs in error.
Mr. DUANE O. LITTLE, Mr. DUKE W. DUNBAR, Attorney General, Mr. FRANK E. HICKEY, Deputy, Mr. PETER L. DYE, Assistant, for defendants in error.
IN the trial court plaintiff's in error were plaintiffs and defendants in error were defendants. We shall refer to the plaintiffs (three minor children of Creed S. Huff) as "claimants"; to defendant in error Frank C. Klein Company as "employer"; to Industrial Commission of Colorado as the "Commission" and to Creed S. Huff as the "decedent."
Claimants sought recovery under the Workmen's Compensation Act for the death of their father. The findings and conclusions of a referee were adverse to the claimants, and the Commission approved and confirmed the referee's findings. The case was then taken to the district court where the award of the Commission was affirmed and claimants are here by writ of error.
The facts incident to the claim may be briefly stated as follows: Decedent was employed as a truck driver and had been so employed for a little more than six months. On April 1, 1956, he was directed by his employer to drive an oil transport truck from Denver, Colorado, the Cheyenne, Wyoming, there to have the tank of the transport filled with oil and return the same to a point in Colorado. Decedent arrived at his destination in Cheyenne shortly before midnight of April 1, 1956. The tank was filled after another employee had started the process and left. This employee saw decedent get into the cab of his truck after having placed a jack therein. Upon returning later this employee found decedent slumped over in the cab of his truck and upon examination discovered that he was dead. The Commission in a supplemental finding, ordered by the trial court, found from circumstantial evidence that decedent had changed a tire on his truck while in Cheyenne; that changing tires was part of his usual duties and that it did not involve any "unusual activity or an extraordinary occurrence, and that there is no evidence of overexertion."
The autopsy disclosed that decedent came to his death as a result of a coronary thrombosis, and that he had a prior condition involving sclerotic deterioration of the heart. According to the testimony of Mrs. Huff, the heart condition of decedent was unknown to both of them, her testimony being that her husband had not been ill since 1936 and that he was a "very well man."
The referee and the Commission found from the evidence that there was no over-exertion indulged in by decedent on this occasion which would constitute an accident arising out of and in the course of his employment and compensation was denied.
In Industrial Commission v. International Corp., 132 Colo. 256, 287 P.2d 275 we held that in cases of heart failure, claimant must prove more than the mere exertion attendant upon the usual and ordinary course of the employment. Over-exertion must be established.
In other words, there must be proof of a causal connection between his employment and the heart ailment which produced the death or incapacity. Carroll v. Industrial Commission (1921) 69 Colo. 473, 195 Pac. 1097.
In Industrial Commission v. Havens, 136 Colo. 111, 314 P.2d 698, the fact situation disclosed that decedent, who died of a coronary occlusion, had been in good health when hired a short time before his death and that he had received a blow while unloading his truck. The evidence also disclosed that in his prior job unloading was not a part of his work. That the over-exertion, plus the blow and admitted prior good health of decedent, made a prima facie case that was not rebutted by employer. In other words, in Havens there was no evidence to the contrary on which the Industrial Commission could base a finding of noncompensability.
The comment in Havens concerning medical testimony is of course dicta and was not meant to apply to this type of fact situation where the employer's evidence does create a valid conflict in the evidence. When there is conflicting evidence between two doctors as here, then the Industrial Commission is the finder of the facts and we should not set aside their rulings. Again we point out that in Havens there was no competent evidence to support the findings of the Commission.
A recent case related to Havens in some ways is Marotte v. State Fund (1960), 145 Colo. 99, 357 P.2d 915. There a denial of benefits was reversed because there was no evidence to support the Commission's findings, the only medical testimony there being to the effect that the heart attack which resulted in claimant's disability supported a theory of accidental injury.
Here we have an entirely different situation. The employer's evidence was that the exertion of changing a tire was a normal part of decedent's duties and there was competent medical testimony of a prior heart condition. Under these facts and based on the conflicting evidence before it the Commission was justified in making its finding of non-liability and it is binding on the courts. Metz. v. Industrial Commission (1956), 134 Colo. 249, 302 P.2d 521. Also see Claimants v. Durango Furniture Mart (1957), 136 Colo. 529, 319 P.2d 494.
The judgment is affirmed.
MR. CHIEF JUSTICE HALL specially concurs in which MR. JUSTICE DAY joins.
MR. JUSTICE DOYLE dissents.