Opinion
March 30, 1971.
Editorial Note:
This case has been marked 'not for publication' by the court.
Alious Rockett, Francis L. Bury, Feay Burton Smith, Jr., Denver, for respondent State Compensation Ins. Fund.
Albert Cohen, Denver, for petitioner.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent The Industrial Comm. of Colo.
SILVERSTEIN, Chief Judge.
This is an appeal from an order of the Industrial Commission denying workmen's compensation and dismissing a widow's claim for death benefits. The parties will be referred to by name.
The facts of the case are as follows. John Lewis while employed by the Industrial Commission died of a heart attack after climbing three flights of stairs to attend a class at Colorado State University. At the hearings on the claim the uncontroverted testimony of all the lay witnesses was that Lewis was a hardworking employee who normally put in overtime on his job. They further testified that in the two-week period prior to his death he had been working at a rate over and above his normal pace and was subjected to many additional pressures and problems. The testimony of the medical experts was in conflict on the issue as to whether the stress of his work caused the heart attack. The Industrial Commission found among other matters:
'That there was no unusual Physical overexertion connected with the deceased's employment which could be deemed to be an accident within the meaning of the Workmen's Compensation Act of Colorado.
'That the only evidence of any possible Physical overexertion in the record is the stair climbing incident at Colorado State University which did not arise out of or within the course of the deceased's employment for the respondent Industrial Commission of Colorado.' (emphasis added)
It is clear from the pleadings and the findings that the case was heard and determined pursuant to the doctrine, recently restated in Evans v. Denver, 165 Colo. 311, 438 P.2d 698, wherein the court said:
'In Colorado, we are committed to the doctrine that in order to render a 'heart attack', incurred in the course of employment, compensable under the Workmen's Compensation Act, the claimant must show (1) 'overexertion' by the decedent, arising out of and in the course of his employment, and (2) that such 'overexertion' proximately caused the death. (citing cases) Such 'overexertion' must be more than the mere exertion attendant upon the usual and ordinary course of the employment.'
However, on December 7, 1970, the Supreme Court in T & T Loveland Chinchilla Ranch v. Bourn, Colo., 477 P.2d 457 held that Evans v. Denver, Supra, was no longer authority in determining when a heart attack constituted a compensable injury under the Workmen's Compensation Act. The court noted that changes in the Act contained in 1965 Perm.Supp., C.R.S.1963, 81--2--9, abolished the 'overexertion' rule, and stated,
'(We) conclude that the legislative intent in the 1965 amendment was to make compensable an injury or death which results from exertion in the performance even of usual duties within an employee's scope of employment. There must, of course, be the chain of causation necessary as in all workmen's compensation cases.'
'With the construction we have here made of the statutory definitions, the findings of the commission are not applicable and it must make new ones. (citing cases) The commission may well conclude that in the light of this opinion it should conduct an entire new hearing and, if it so concludes, it is so authorized.'
We find the directions given in T & T Loveland Chinchilla Ranch, supra, directly applicable to the present situation.
Therefore the order of the Commission is set aside and the cause remanded to the Commission for new findings and, if necessary, a new hearing consonant with the views herein expressed.
DUFFORD and PIERCE, JJ., concur.