Opinion
W.C. No. 4-817-721.
July 19, 2011.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) dated January 25, 2011 that denied his claim for benefits. We affirm.
The claimant sought medical benefits based on his heart attack at work after shoveling snow. However, the ALJ was not persuaded that the claimant's heart attack resulted from unusual exertion at work and dismissed his claim.
Section 8-41-302(2), C.R.S. establishes a two-prong test of compensability where the claim is based upon a heart attack. The claimant must show he experienced an "unusual exertion arising out of and within the course of the employment," and that the heart attack was caused by the unusual exertion. Vialpando v. Industrial Claim Appeals Office, 757 P.2d 1152 (Colo. App. 1988); Kinninger v. Industrial Claim Appeals Office, 759 P.2d 766 (Colo. App. 1988). Exertion meets the statutory definition if it is unusual in kind and quality when compared to the work history of the claimant or decedent. Vialpando v. Industrial Claim Appeals Office, supra; Townley Hardware Co. v. Industrial Commission, 636 P.2d 1341 (Colo. App. 1981).
The claimant asserts that the snow shoveling which preceded his heart attack constitutes an unusual exertion because removing snow was only a minimal part of his overall duties. The claimant further contends that, contrary to the ALJ's determination, snow shoveling was different in kind and quality than the claimant's usual warehouse work. We find no basis for disturbing the ALJ's determination that the claimant did not establish a compensable injury.
According to the ALJ's findings of fact, the claimant was hired as a warehouse manager. He would arrive at work around 7:30 in the morning and attend a daily staff meeting around 8:00 a.m. Tr. at 8, 32. In addition to supervising warehouse workers the claimant lifted 50-pound bags, and organized and kept the grounds by mowing and weeding. Tr. at 7-10, 24, 28. The claimant's regular duties included clearing snow from sidewalks and parking areas. Tr. at 12-14. The claimant indicated that snow removal took about 25 to 30 minutes. Tr. at 13. On February 22, 2010 the claimant shoveled snow in the morning for about 30 minutes or less. Tr. at 32, 42. There was approximately three to four inches of snow on the ground. Tr. at 41. The claimant had no physical symptoms while shoveling snow. Tr. at 16. The claimant then went to the morning meeting and passed out around 8:15 a.m. Tr. at 33-34. He was taken by ambulance to a medical center and treated for an acute myocardial infarction with cardiac arrest. Tr. at 20, Exhibits 1, 4.
A treating cardiologist opined that the claimant's heart attack was proximately caused by unusual exertion while performing his work duties. Exhibit 1. However, the cardiologist relied on information provided by claimant's counsel. The claimant had little recollection of the relevant events, and his description of his shoveling activities conflicted with the testimony of others. Tr. at 14-15. For instance, the claimant testified that he shoveled for about 45 minutes, while the sales manager testified that he also shoveled snow and when he returned the shovel around 7:25 to 7:30 the claimant was not yet at work. Tr. at 41-42. The ALJ found the claimant was in the daily meeting by seven minutes after 8:00, so the claimant shoveled for 25 minutes or so at most. Therefore, it was questionable whether the cardiologist had accurate information regarding the claimant's activities and "the unusualness of the activities in which the claimant was engaged." Another cardiologist, Dr. Hutcherson, opined that the claimant's heart attack" could have occurred at any time and probably in any situation in view of the severity of the [claimant's] coronary disease." Exhibit 8.
In addition to finding that snow shoveling was part of the claimant's job duties, the ALJ credited the sales manager's testimony that the snow was not unusually difficult to shovel and that the claimant's normal job duties included regular lifting and moving of 50-pound bags and other physical tasks. The ALJ was not persuaded that the claimant's work activities on the day he suffered a heart attack constituted unusual exertion when compared to the claimant's usual job duties or his employment history.
The ALJ's decision is consistent with the applicable law. The determination of whether the claimant sustained his burden to prove an "unusual exertion" was a question of fact for resolution by the ALJ. Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo. App. 1986). Therefore, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.
The ALJ's findings regarding the claimant's job duties and the lack of unusual exertion are well supported by evidence in the record. In particular, the ALJ was persuaded that the claimant's snow shoveling duties were part of the claimant's regular duties and that the shoveling the claimant did on the date of the heart attack was not unusual. The claimant refers to cases in which benefits were awarded based on workers suffering heart attacks after shoveling snow, but those cases are distinguishable from the facts in this case. 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. In Baca County School Dist. v. Brown, 156 Colo. 562, 400 P.2d 663 (1965), shoveling snow was found not to be a normal and usual duty of the affected worker.
The claimant also discusses evidence from which contrary inferences could be drawn, but such evidence does not provide a basis for relief on review. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985) (substantial evidence is probative evidence which would warrant reasonable belief in existence of facts supporting a particular finding, without regard to existence of contradictory testimony or contrary inferences). We are not persuaded by the claimant's arguments that the ALJ erred in denying benefits under the circumstances.
IT IS THEREFORE ORDERED that the ALJ's order dated January 25, 2011 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Dona Rhodes
JOHN RITTENHOUSE, SEVERANCE, CO, (Claimant).
PAWNEE BUTTES SEED, INC., Attn: JANINE HIJAR, GREELEY, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D. FLEWELLING, ESQ., DENVER, CO, (Insurer).
LAW OFICES OF REGINA M. WALSH ADAMS, Attn: MICHAEL D. MULLISON, ESQ., GREELEY, CO, (For Claimant).
RUEGSEGGER, SIMON, SMITH STERN, Attn: LYNDA S. NEWBOLD, ESQ., DENVER, CO, (For Respondents).