Summary
In Amen's Chevron v. Amen, 536 P.2d 324 (Colo. App. 1975) (not selected for official publication), there was an unusually heavy snow storm, the motorized snow-removal equipment had broken down, and the worker shoveling by hand was found to be more strenuous than normal for the worker's job activities.
Summary of this case from Matter of Rittenhouse v. Pawnee Buttes Seed, W.C. NoOpinion
June 30, 1975.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 325
Rovira, DeMuth & Eiberger, Russell P. Rowe, Denver, for respondent Emil P. Amen.
William J. Baum, Francis L. Bury, Robert S. Ferguson, Denver, for petitioners.
J. D. MacFarlane, Atty. Gen., Jean E. Dubofsky, Deputy Atty. Gen., Peter L. Dye, John Kezer, Asst. Attys. Gen., Denver, for respondent Industrial Commission of Colorado.
RULAND, Judge.
Petitioners, Amen's Chevron and Division of State Compensation Insurance Fund, seek review of an order of the Industrial Commission which reversed the referee's findings and awarded respondent Emil P. Amen (claimant) compensation under the Colorado Workmen's Compensation Act. We affirm.
In the winter of 1971--1972, claimant was the manager and operator of Amen's Chevron Station. In late January and early February 1972 there were unusually heavy snowstorms. Because of the breakdown of his motor-operated snow removal equipment, claimant and his employees had to remove snow and ice from the station's driveways by hand with shovels. This involved more strenuous work on claimant's part than his normal on-the-job activities. Claimant experienced chest and shoulder pains and tired easily when participating in snow and ice removal. On February 10, 1972, when he experienced increasingly severe chest pains, he consulted a physician (who was not called to testify in this proceeding) and apparently no heart problems were diagnosed.
On February 13, while engaging in routine activities at the station, claimant experienced chest pains more severe than the earlier ones as well as a paralysis of his left arm. He was taken to the hospital and the treating physician (who specialized in heart disease) determined that Amen had suffered an acute myocardial infarction (heart attack).
The testimony of claimant, the treating physician, and another physician who specialized in heart disease was presented to the referee. The non-treating physician was of the opinion that claimant was suffering from decreasing capacity of his coronary arteries due to atherosclerosis, that claimant's heart attack resulted from this condition, and further, that claimant's exertion in removing the snow and ice was not the cause of the attack. While the treating physician agreed that claimant had incurred atherosclerosis from cholesterol in the coronary arteries, in his opinion the heart attack was precipitated by the exertion in removing snow and ice from the station on February 10, 1972, and this exertion caused the heart attack to occur earlier than it otherwise would.
After hearing this evidence, the referee found that the evidence failed to establish any unusual overexertion as being the cause of claimant's heart attack, and the referee concluded that the opinion of the physician who attributed the attack solely to atherosclerosis was better reasoned. On appeal the Commission reversed the referee. It found that the snow removal activities 'on or about February 10' constituted unusual exertion which culminated in the heart attack. While pointing out that claimant might have eventually suffered a disabiling heart attack due to the atherosclerosis, the Commission adopted the treating physician's opinion that the overexertion in the shoveling of snow aggravated the claimant's condition and that, therefore, the heart attack occurred sooner than it otherwise would. Accordingly, the Commission awarded claimant compensation for medical expenses, temporary total disability, and permanent partial disability.
The parties agree that for compensation to be awarded, it must appear the heart attack was proximately caused by an unusual or extraordinary exertion arising out of and within the course of claimant's employment. See s 8--41--108(2), C.R.S.1973 (1971 Perm.Supp., C.R.S.1963, 81--2--9(3)). Also the record amply supports the Commission's finding that removal of snow and ice with hand shovels from the station by claimant constituted unusual exertion within the course of his employment.
Petitioners contend, however, that since the treating physician testified that as of February 10, no permanent heart damage to claimant had occurred, the Commission erred in concluding that unusual exertion by claimant on that date was the cause of the heart attack on February 13. We disagree. Based on a review of the physician's testimony in its entirety, we conclude that the Commission could properly infer that claimant's exertion aggravated preexisting defects in the coronary system to the point that normal exertion on February 13 became overexertion sufficient to precipitate the attack. Cf. Industrial Commission v. Johnson Pontiac, Inc., 140 Colo. 160, 344 P.2d 186.
As indicated above, the Commission relied upon the opinion of the treating physician. Petitioners contend that the Commission's findings are erroneous because the treating physician's opinion was not based upon an accurate history of claimant's chest pains as testified to by claimant.
Although claimant had difficulty remembering specific dates, his testimony seems to indicate that the manual snow removal and the chest pains resulting therefrom occurred on various dates from approximately January 30 through February 10. The treating physician was advised of the snow removal activities that occurred on February 10 but not, so far as we can determine from the record, that claimant also suffered chest pains from snow removal activities prior thereto.
However, this deficiency in the medical history available to the treating physician does not negate the sufficiency of the evidence in support of the findings of the Commission. His opinion was, in essence, that heavy exertion was the precipitating cause of the infarction, and additional evidence of further heavy exertion supports that opinion. Indeed, when the non-treating heart specialist was examined concerning the effect of overexertion on a person afflicted with narrowing of the coronary arteries such as claimant, he conceded that overexertion could precipitate a heart attack.
We have considered petitioners' other allegations of error and find them to be without merit.
Order affirmed.
VAN CISE and STERNBERG, JJ., concur.