City and County of Denver v. Industrial Commission

• Decision Date: 03 November 1977
• Docket Number: No. 77-270,77-270
• Citation: 40 Colo.App. 202,573 P.2d 562
• Parties: CITY AND COUNTY OF DENVER, and Division of State Compensation Insurance Fund, Petitioners, v. INDUSTRIAL COMMISSION of Colorado, and Thomas W. Dinsmoore, Respondents. . II
• Court: Colorado Court of Appeals

Page 562

573 P.2d 562

40 Colo.App. 202

CITY AND COUNTY OF DENVER, and Division of State Compensation Insurance Fund, Petitioners, v. INDUSTRIAL COMMISSION of Colorado, and Thomas W. Dinsmoore Respondents.

No. 77-270.

Colorado Court of Appeals, Div. II.

Nov. 3, 1977.

Rehearing Denied Nov. 17, 1977.

Certiorari Granted Jan. 9, 1978.

James A. May, Francis L. Bury, Robert S. Ferguson, Denver, for petitioners.

Pferdesteller, Vondy, Horton & Worth, P. C., Anthony L. Worth, Denver, for respondents.

ENOCH, Judge.

Petitioners, City and County of Denver, and Division of State Compensation Insurance Fund, seek review of an Industrial Commission order granting claimant, Thomas Dinsmoore, a 10% Permanent partial disability award, to the extent of $7,417.50. We affirm.

The following facts are undisputed: On December 3, 1974, claimant, a sergeant and 25-year veteran of the Denver Police Department, suffered a myocardial infarction. Claimant had previously developed arteriosclerosis and since May 1973, had been following a program of diet and exercise to reduce the risk of that ailment. The Denver police promotional system had been tied up in litigation and there were no promotions to the rank of sergeant from August 1, 1971, to October 16, 1974. Consequently there was a shortage of sergeants, and those available had been working overtime and had assumed the burden of duties not normally assigned to them. For a period of approximately 3 to 31/2 months immediately prior to his attack, claimant was given the responsibility for supervising Denver Public School busing arrangements within a certain district, a job which entailed daily meetings with school personnel and area residents. Primarily because of this responsibility, claimant took only three days off and worked 12 of his vacation days in November 1974.

Claimant's treating physician stated, in his opinion, the heart attack was "precipitated by unusual circumstances requiring presence of mind, excitement, tension, . . ." Another doctor testified the heart attack might have been job-related, but was not job-precipitated. He testified that pressure stress is one cardiac risk factor, but felt, in this situation, the attack was the result of normal wear and tear. He noted, however, that because claimant had a pre-existing heart condition, it would take less stress in a given situation to produce a heart attack.

The referee found claimant's heart attack to have been precipitated "by the unusual events prior to December 3, 1974, which aggravated his pre-existing heart condition; that said aggravation was an accident arising out of and within the scope of his employment and that claimant has sustained permanent partial disability of 10% As a working unit fairly attributable to said accident."

I.

Petitioners contend that under the Colorado Workmen's Compensation Act, a compensable heart attack may not be shown by evidence of job stress. We disagree.

Colorado, along with approximately a dozen other states, requires, as a prerequisite for workmen's compensation recovery in heart attack cases, proof of overexertion or unusual strain in the course of one's employment. Section 8-41-108(2), C.R.S.1973; 1A A. Larson, Workmen's Compensation Law § 38.30. Courts in several of those jurisdictions have held mental stress and tension sufficient to support awards. See, e. g., McWhorter v. South Carolina Department of Insurance, 252 S.C. 90, 165 S.E.2d 365; Louderback v. Department of Labor & Industries, 14 Wash.App. 931, 547 P.2d 889. Cf. Snuggs v. Steel Haulers, 501 S.W.2d 481 (Mo.).

The court in Claim of Major v. New York State Court of Claims, 31 A.D.2d 993, 297 N.Y.S.2d 768, sustained an award where a judge, while attempting to clear up a backlog of cases, suffered a heart attack, and stated:

It has been held that undue anxiety, strain, and mental stress from work are frequently more devastating than a mere physical injury, the courts taking cognizance of this fact in sustaining awards when no physical impact was present. . . . .

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