W.C. No. 4-496-813Industrial Claim Appeals Office.
November 5, 2002

The claimants, spouse and son of Paul Abel (decedent), seek review of an order of Administrative Law Judge Friend (ALJ) which denied the claim for funeral expenses, death benefits, and medical expenses. The claimants contest the sufficiency of the evidence to support the ALJ’s findings that the decedent’s heart attack was not caused by unusual exertion. We affirm.

The decedent was a security guard employed on the graveyard shift at the employer’s media and television production facility. His usual duties required patrolling the building and grounds for two hours and then watching surveillance monitors for one hour. The patrol duties required approximately 20 minutes, and guards were free to rest when not patrolling. It is not disputed that it was rare for visitors to come to the facility during the decedent’s shift.

The decedent reported to work at 11:23 p.m. on April 20, 1999, the same day as the shootings at Columbine High School. Because of the shootings, there were many media technicians and personalities arriving at the production center to establish broadcast capacity. Some witnesses described the atmosphere as “frenzied” and like a “madhouse.”

The ALJ found, based on the testimony of a coworker and the decedent’s supervisor, that the decedent was on patrol from the time he arrived until midnight. Thereafter, he spent one hour working at a reception desk admitting visitors to the facility and asking them to sign in. The ALJ found this work was mostly sedentary. Thereafter, the decedent spent one hour observing the surveillance monitors in the control room. This work was also sedentary. Finally, at 2:00 a.m. the decedent began his second patrol shift.

At around 2:30 a.m. the decedent, who was in an area where much media activity was occurring, radioed requesting assistance. The decedent reported chest pains and difficulty breathing. He was observed to be sweating and “clammy.” An ambulance was called and the decedent was transported to the hospital. The notes of the emergency room physician record the decedent stated that “he did not have time to rest” and “did not have time to sit.”

The decedent was hospitalized in the early hours of April 21. He died of a heart attack on the morning of April 22.

The claimants alleged the decedent’s heart attack was caused by unusual exertion and stress resulting from the frenzied media activity on April 20 and 21. The claim was supported by the opinions of two medical experts, both of whom relied in part on the emergency room notations that the decedent was unable to rest or sit during his shift.

The respondents presented the testimony and report of Dr. Vigoda. Dr. Vigoda opined the decedent’s heart attack was caused by the natural progression of preexisting heart disease which reached the critical stage of “acute coronary syndrome” during the week prior to April 20, and was not caused by exertion or stress at work. In fact, Dr. Vigoda opined the enzyme studies performed after the decedent was hospitalized indicate he probably sustained heart damage before reporting to work on April 20. (Tr. February 7, 2002, Pp. 55, 58).

The ALJ found the claimants failed to prove the decedent experienced any “unusual exertion,” or that the heart attack was caused by such exertion. Instead, the ALJ credited the evidence that on the night of April 20 and 21, the decedent had as much or more opportunity to sit as usual, and that the presence of the media activity did not cause sufficient stress to precipitate a heart attack. Further, the ALJ credited the opinions of Dr. Vigoda that the heart attack was not caused by the decedent’s employment. The ALJ also found the claimants failed to prove compensable stress under § 8-41-301(2)(a), C.R.S. 2002.

On review, the claimants make numerous attacks on the sufficiency of the evidence to support the ALJ’s finding of fact that the decedent did not experience “unusual exertion.” We find no error.

To recover for a death resulting from a heart attack, the claimants must prove “by competent evidence that such heart attack was proximately caused by an unusual exertion arising out of and in the course of the employment.” Section 8-41-302(2), C.R.S. 2002. The “unusual exertion” and “proximate cause” elements are distinct, and both must be proven Kinninger v. Industrial Claim Appeals Office,[State v. Walsh] 789 P.2d 766
(Colo.App. 1988).

The existence of unusual exertion requires a comparison of the decedent’s duties at the time of the heart attack compared to the decedent’s job history. Unusual exertion may exist if the decedent’s duties at the time of the attack were different in kind or quantity than was usually the case. Determination of this issue is one of fact for the ALJ. Wackenhut Corp. v. Industrial Claim Appeals Office, 975 P.2d 1131
(Colo.App. 1997); Vialpando v. Industrial Claim Appeals Office, 757 P.2d 1152 (Colo.App. 1988).

Because the existence of unusual exertion is a factual issue, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. Substantial evidence is that quantum of proof which supports the reasonable belief in the existence of a fact without regard to contrary testimony and inferences. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996); Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Thus, the substantial evidence test requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving Storage Co. v. Gussert, 914 P.d 411 (Colo.App. 1995). In this regard, we note the ALJ is not required to enter specific findings of fact discrediting evidence which is not found to be persuasive. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).

The claimants argue the ALJ was required to credit the statements recorded in the emergency room report that the decedent was unable to rest or sit. The claimants assert the ALJ “lacked jurisdiction” to discredit this evidence because it was found in the “stipulated” medical records. We reject this assertion.

The ALJ was required to admit the hospital records as evidence in the case provided they are relevant. Section 8-43-210, C.R.S. 2002. However, admission of the reports did not amount to a “stipulation” that the records were accurate, or that the statements recorded in the records are true. Stipulations are a form of judicial admission which is binding on a party. Durbin v. Bonanza Corp., 716 P.2d 1124 (Colo.App. 1986). However, our review of the record does not indicate the respondents “stipulated” to the accuracy of the medical records or the truth of statements contained therein. Rather, the respondents merely agreed to their admission as evidence. The credibility of the records and the inferences to be drawn therefrom were matters for determination by the ALJ based on his evaluation of the evidence as a whole. See Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).

Neither did the ALJ impermissibly “speculate” in listing reasons why the decedent’s statements to the emergency room physician might not be reliable. Indeed, the ALJ found from the testimony of other witnesses that the decedent had opportunities to rest and sit, and might have done so more than usual on April 20 and 21. Thus, considering the evidence as a whole, the ALJ merely pointed out reasons why the statements in the hospital records might be inaccurate, or inaccurately recorded. In our view, the ALJ’s statements represent plausible inferences from the record. Insofar as the claimants make other arguments concerning this evidence, we find them to be without merit.

The claimants make numerous arguments that the evidence does not support the finding that the decedent did not experience “unusual exertion” because of the media activity and the relative quiet enjoyed by guards during most evenings. However, the ALJ credited evidence the decedent engaged in no more physical activity than usual. Further, the ALJ was not required to infer that because there was excitement among members of the media, the decedent experienced any unusual stress. In fact, one of the decedent’s coworkers testified the presence of extra people did not create anymore work for the guards than usual, and their duties were not more demanding than usual. (Tr. February 7, 2002, Pp. 6-7). The ALJ either explicitly or implicitly rejected the inferences the claimants advocates.

The claimants also contend the ALJ erred in finding the decedent’s heart attack was not caused by any unusual exertion or stress experienced on the night of April 20 and 21. The claimants argues Dr. Vigoda was not credible because he is retired, is not board certified in cardiology, and “tried to become the fact-finder.” The claimants also relies on Dr. Bernton’s testimony. We perceive no error.

As noted, causation provides an independent basis for affirming the ALJ’s order. Section 8-41-302(2) requires that the “unusual exertion” be the proximate cause of the heart attack. The question of whether the alleged unusual exertion was the proximate cause of the heart attack is a question of fact for the ALJ. Kinninger v. Industrial Claim Appeals Office, supra. Thus, we must uphold the ALJ’s findings concerning causation if supported by substantial evidence. (Findings of Fact 13 and 14).

The claimants’ assertion that the testimony of Dr. Vigoda was not competent was waived because the claimants did not object to Dr. Vigoda’s qualifications to testify as an expert in the area of cardiology. Thus, any such objection may not be considered on appeal. CRE 103(a)(1) Cordova v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 01CA0852, February 28, 2002).

In any event, the weight and credibility of expert medical testimony on the issue of causation is a question for determination by the ALJ. The issues raised by the claimants concerning Dr. Vigoda’s qualifications were subject to consideration by the ALJ when evaluating his testimony, but certainly do not render it incredible as a matter of law. We specifically note that Dr. Vigoda did not testify he lacked board certification in cardiology. He testified only that he had not updated his certification by the optional step of retaking the examination. (Tr. February 7, 2002, Pp. 31, 34-35).

Further, Dr. Vigoda’s report and testimony constitute substantial evidence in support of the ALJ’s findings that the claimants failed to prove that physical exertion or emotional stress caused the decedent’s heart attack. Dr. Vigoda explained the decedent’s history of heart disease which preexisted the events of April 20 and 21, and why the clinical and enzyme evidence suggests the decedent sustained injury to the heart before reporting to work. Dr. Vigoda also explained why, in his opinion, any stress of work was insufficient to trigger the type of emotional (and hence chemical) response which would cause a heart attack.

It is true the claimants presented evidence to the contrary, including expert opinion. However, the ALJ was not persuaded by the claimants’ experts because they relied on the inaccurate emergency room report of the decedent’s activities. Thus, we may not substitute our judgment for that of the ALJ concerning the weight and credibility of the evidence on the issue of causation. Cordova v. Industrial Claim Appeals Office supra.

Insofar as the claimants makes other arguments on the issue of causation, they are factual in nature and we find them to be without merit. In light of this resolution, we need not consider the ALJ’s additional finding that the claimants failed to prove compensable “mental impairment” under § 8-41-301(2)(a), C.R.S. 2002.

IT IS THEREFORE ORDERED that the ALJ’s order dated March 19, 2002, is affirmed.



David Cain


Dona Halsey

This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed _______November 5, 2002______ to the following parties:

Rita O’Connor, 36 Shad Row, Suffield, CT 06078

Paul Louis Abel, IV, 36 Shad Row, Suffield, CT 06078

Karen Marsicovetere, Risk Management, The Wackenhut Corporation, 4200 Wackenhut Dr., Palm Beach Gardens, FL 33410

Insurance Company of the State of Pennsylvania, c/o Tony Cipriano, Cambridge Integrated Services, P. O. Box 52106, Phoenix, AZ 85072

Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimants)

W. Berkeley Mann, Jr., Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)

By: A. Hurtado