Opinion
W.C. No. 4-293-607
October 28, 1997
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Rumler (ALJ) awarding death benefits to the claimant. We affirm.
The ALJ found that the decedent was a heavy equipment operator employed to drive a trash truck. On May 18, 1994, the decedent was delivering trash to the Brighton dump when he "encountered an oncoming car in the opposite lane that was driving erratically and swerving towards the decedent's truck." The oncoming driver swerved to miss the decedent's vehicle, although the decedent initially believed that the driver "may have clipped" the truck. The oncoming vehicle then left the road, was badly damaged and came to rest approximately fifteen to twenty yards from the decedent's truck.
The decedent's supervisor was called to the scene of the accident. At the hearing, the supervisor testified that the decedent mentioned "burning pain in his chest," and that he did not feel well. The decedent was then allowed to leave the accident scene and proceed to the dump. At the dump the decedent collapsed, and later died.
Two physicians testified at the hearing. Dr. Brammel opined that the decedent died of "acute arrythmia." Dr. Havranek testified that the decedent died of a myocardial infarction. However, the physicians agreed that the decedent's fatal heart problem was probably triggered by the near collision with the erratic driver.
Based on this evidence, ALJ found that the decedent died of a myocardial infarction caused by the "unusual stress" of the near collision. Further, the ALJ found that the circumstances involved a "deviation from the decedent's usual work activities." Therefore, the ALJ concluded that the decedent sustained a compensable heart attack within the meaning of § 8-41-302(2), C.R.S. 1997.
Moreover, the ALJ found that the near collision constituted a "psychologically traumatic event" which was outside the decedent's usual work experience, and would have evoked significant symptoms of distress in a worker in similar circumstances. The ALJ also found that the circumstances were not common to all fields of employment. Consequently, the ALJ concluded that the claimant "met the requirements of the stress statute" found at § 8-41-301(2), C.R.S. 1997.
I.
On review, the respondent first contends that the evidence does not support the ALJ's determination that the decedent sustained a compensable heart attack. The respondent asserts that there is no evidence of "unusual exertion" because the decedent was not actually involved in an automobile accident, but merely witnessed erratic driving. The respondent further asserts that the event was not "unusual" because the decedent was involved in an automobile accident in 1993. We are not persuaded.
The concept of "unusual exertion" does not require that the work which causes the heart attack be different in nature from the employee's usual duties. Instead, the activities at or near the time of the heart attack must be compared with the employee's "normal activities" in order to determine if the former were unusual. Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986). Moreover, the concept of "unusual exertion" is not restricted to physical exertion. To the contrary, the courts have held that emotional "stress" caused by unusual employment demands may establish unusual exertion. Apache Corp. v. Industrial Commission, supra; Carr v. Industrial Commission, 709 P.2d 52 (Colo.App. 1985).
In determining whether the evidence establishes unusual exertion, we must uphold the ALJ's findings of fact if supported by substantial evidence. Section 8-43-301(8), C.R.S. 1997. This standard requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations and the plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, as the ALJ found, two medical experts testified that the emotional stress caused by the near collision probably initiated physiological changes sufficient to trigger the decedent's fatal event. While these physicians disagreed about the specific mechanism of the death, there was no disagreement that the collision was the triggering stimulus. (Tr. October 10, 1996, pp. 40, 49; Tr. January 9, 1997, pp. 35-36).
Further, the evidence supports the ALJ's inference that the near collision was an "unusual" stressor in the context of the claimant's normal work experience. As the ALJ recognized, the decedent's usual duties involved the operation of the truck, and it is logical to suppose that the employer did not intend for the decedent's usual experience to include collisions or near collisions. To the contrary, it was logical for the ALJ to conclude that, although there are risks of driving, the decedent's normal driving experience did not involve near collisions. Moreover, the fact that the decedent may have been involved in a collision in the past does not make that event common in the context of his usual work activities.
The respondent also argues that there is insufficient evidence that the heart attack was caused the stressful event. In support of this argument, the respondent points out that the decedent reported chest pain to his brother prior to the incident, and argues that there is insufficient evidence concerning the time at which the heart attack occurred. We are not persuaded.
The question of whether the claimant established that the heart attack was caused by the unusual exertion was one of fact for determination by the ALJ. Kinninger v. Industrial Claim Appeals Office, 759 P.2d 766 (Colo.App. 1988). In this regard, it was for the ALJ to assess the weight and credibility of the evidence, including the medical evidence. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
Here, the medical evidence supports the ALJ's inference that the unusual exertion was the cause of the decedent's heart attack. Further, there was lay evidence that the decedent was not experiencing symptoms when he left the house in the morning, but was exhibiting symptoms shortly after the near collision. Thus, there is substantial evidence from which the ALJ could infer the requisite causal relationship. The mere fact that evidence might have supported a contrary conclusion is immaterial on review. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
II.
The respondent next contends that the ALJ erred in concluding that the claimant satisfied her burden of proof to establish that the decedent's stress involved a claim for compensable "mental impairment" under § 8-41-301(2). Specifically, the respondent asserts that there is "no evidence" that the decedent suffered "an emotional injury as a result of a purely emotional stimulus such as stress from work load or an emotional response to working conditions." The respondent also asserts that the decedent was equally exposed to the risks of a collision outside his employment.
For her part, the claimant argues that the provisions of § 8-41-301(2) do not apply to this case because the decedent suffered a "physical injury" which removes the case from the statute. In any event, the claimant argues that the evidence supports the ALJ's finding that the elements of § 8-41-301(2) were satisfied. We conclude that § 8-41-301(2) applies, but the evidence supports the ALJ's finding that the claimant satisfied her burden of proof.
We previously held that the "stress statute" which preceded § 8-41-301(2) applied where the claimant alleged that "job stress" caused "unusual exertion" which, in turn, resulted in a myocardial infarction. Dahlinger v. Patent Scaffolding, W.C. No. 3-897-438 (July 6, 1990), aff'd., Dahlinger v. Patent Scaffolding, (Colo.App. No. 90CA1272, April 18, 1991). More recently, in DuShane v. Beneficial Colorado, Inc., W.C. No. 4-218-217 (July 17, 1996), aff'd., DuShane v. Beneficial Colorado, Inc., (Colo.App. No. 96CA1404, December 27, 1996), we held that § 8-41-301(2) applies where a purely "emotional stimulus" causes a "physical injury." Cf. Oberle v. Industrial Claim Appeals Office, 919 P.2d 918 (Colo.App. 1996) (§ 8-41-301(2) does not apply where a "physical component" contributes to the injury).
We see no reason to depart from our prior holdings. Thus, we conclude that the provisions of § 8-41-301(2) apply to this claim because the ALJ found that the decedent suffered a purely "emotional stimulus" (near collision) which caused a physical injury (heart attack). No physical component contributed to the decedent's injury. The issue then becomes whether the evidence supports the ALJ's conclusion that the claimant satisfied the elements of § 8-41-301(2).
Insofar as the respondent is asserting that there is no substantial evidence that the claimant sustained a "psychologically traumatic event" within the meaning of § 8-41-301(2), we disagree. The expert medical evidence establishes that the stress of the near collision would have been sufficient to cause the physiological changes leading to the decedent's heart attack.
Further, we disagree with the assertion that the claimant was equally exposed to risks of a near collision outside of his employment. Our courts have harmonized § 8-41-301(2)(b), C.R.S. 1997, and § 8-41-302(1), C.R.S. 1997. In Young v. Industrial Claim Appeals Office, 860 P.2d 591 (Colo.App. 1993), the court concluded that, "for a mental condition to be compensable under the . . . Act, the hazards causing the stress must be more attributable to the workplace than to a claimant's personal problems." This analysis was followed in General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994), where the court stated that, "compensability depends on whether the stressor causing the injury arose primarily in the workplace."
Applying these principles here, there is little if any evidence that the claimant sustained outside stressors, including the stress of near collisions. As the ALJ found, the evidence establishes that it was the work-related events of May 18 which caused the decedent to experience the fatal stress. Thus, the evidence supports the determination that the stressor causing the injury arose primarily in the workplace.
Insofar as the respondent makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED therefore ordered that the ALJ's order dated March 13, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill WhitacreNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed October 28, 1997 to the following parties:
Sandra Del Real, 4440 Tamarus St., Apt. LL136, Las Vegas, NV 89119
City County of Denver, Tina Southard, Claims Adjuster, Workers' Compensation Unit, 1445 Cleveland Pl., Ste. 200, Denver, CO 80202
Terry D. Gordon, Esq. William J. Macdonald, Esq., 1890 Gaylord St., Denver, CO 80206 (For the Claimant)
Olivia L. Hudson Smith, Esq., 1445 Cleveland Place, Ste. 200, Denver, CO 80202 (For Respondent)
By: __________________________________________________