Opinion
Oct. 1, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Ralph B. Rhodes, Denver, for claimants.
Page 893
Zarlengo, Mott & Zarlengo, Reed L. Winbourn, Denver, for petitioners.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondents the Industrial Commission of the State of Colorado, James M. Shaffer, Director of Div. of Labor, Dept. of Labor and Employment.
PIERCE, Judge.
Petitioners appeal from a final order of the Industrial Commission awarding workmen's compensation benefits to claimants for the death of Richard E. MaComb. We affirm.
I.
Petitioners' principal contention is that there is insufficient evidence in the record to support the Commission's finding that Mr. MaComb's death was causally related to his employment. The record shows that Richard MaComb died on April 23, 1971, at the age of 24. He led a normally active life, served in the Marine Corps and, in the autumn of 1970, passed a physical examination for his commercial pilot's license. On the night of April 23, 1971, he was performing his duties as assistant manager of the North Star Drive-In Theater when a fight ensued at the concession stand between four young male patrons and another young male patron. As Mr. MaComb attempted to break up the fight, a crowd gathered, and one of the participants challenged Mr. MaComb to fight. However, the challenger departed, and there is no evidence of any physical contact during the incident. Mr. MaComb then went to a nearby telephone. After making written note of some names and phone numbers, apparently in preparation for using the telephone, he convulsed, and died.
The autopsy showed that Mr. MaComb's heart suffered from fibrosis of the myocardium and mild stenosis of the aortic valve. The physicians testifying at the hearing agreed that the cardiovascular changes were compatible with a diagnosis of past rheumatic fever. The physicians also agreed that an emotional stress, such as fear, increases the likelihood of heart failure and that Mr. MaComb's heart was more susceptible to such heart failure than a healthy heart.
In concluding that Mr. MaComb's death was caused by the above-described incident, the Industrial Commission focused on the following redirect testimony:
'Q. So then, Doctor, your opinion, as heretofore testified, is that the proximate cause of Mr. MaComb's death was cardiac arrhythmia arising out of the stress based on these circumstances immediately preceding his death?
A. That's right.
Q. You state that with reasonable medical certainty?
A. That's right.'
The balance of the physician's testimony, and the testimony of the other physician called by the claimants, although couched in indefinite terms, also lend some support to the Commission's conclusion.
Where death results from heart attack, the question of the existence of a causal relationship between the employment and the death is one of fact. Snow v. Industrial Commission, 172 Colo. 133, 470 P.2d 852. The weight and sufficiency of the evidence, and the inferences drawn therefrom, are matters solely within the prerogative of the Industrial Commission and where, as here, the findings of fact of the Commission are based on conflicting evidence, those findings are conclusive on review. Crandall v. Watson-Wilson Transportation System, Inc., 171 Colo. 329, 467 P.2d 48. Moreover, as the above-quoted testimony illustrates, all the evidence supporting the Commission's conclusion cannot be dismissed as speculative. Compare Martin Marietta Corp. v. Terrell, 156 Colo. 407, 399 P.2d 791.
Petitioners also contend that the claimants failed to prove that Mr. MaComb's death resulted from an 'accident.' Within the meaning of the workmen's compensation statutes, until 1970, the Colorado Supreme Court uniformly held that a heart attack was compensable as an 'accident' where it was the result of overexertion during the course of the employment. See e.g., Jasinski v. Ginley-Soper Construction Co., 170 Colo. 52, 458 P.2d 754. Subsequently, in T & T Loveland Chinchilla Ranch v. Bourn, 173 Colo. 267, 477 P.2d 457, the court held that a statutory amendment made a heart attack compensable even if it resulted from normal exertion in the performance of an employee's usual duties. 1965 Perm.Supp., C.R.S.1963, 81--2--9. The general assembly re-established the overexertion requirement for heart attack injuries, 1971 Perm.Supp., C.R.S.1963, 81--2--9(3); however, this amendment was enacted subsequent to Mr. MaComb's death. The record contains sufficient evidence to support the Commission's conclusion that Mr. MaComb's death was the result of an 'accident' within the terms of the statute as authoritatively construed at the time of Mr. MaComb's death.
The order is affirmed.
BERMAN and STERNBERG, JJ., concur.