W.C. No. 4-470-262Industrial Claim Appeals Office.
April 28, 2003
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied death benefits. We affirm.
The decedent was employed as a resident facilities coordinator at the employer’s Fourth Street Facility. The decedent previously worked for the employer as a residential support assistant at its Chipeta Facility. On August 14, 2000, the decedent suffered a fatal heart attack during an outing with the Fourth Street residents.
The ALJ found the decedent’s work at the Fourth Street Facility was less physically demanding that his prior work at the Chipeta Facility. The ALJ also found that the decedent’s usual work history was to work his assigned hours and then volunteer for as much overtime as possible because he enjoyed having the extra money and enjoyed his job as a means of being away from a stressful home life. In fact, the ALJ found that in the month immediately preceding his death the decedent volunteered to work on his regularly scheduled days off. Consequently, the decedent worked 26 of the last 27 days before his death.
Dr. Vigoda, who testified as an expert in cardiology, reviewed the decedent’s medical records, the autopsy report and listened to the testimony of the employer’s witnesses and the claimant. Based on this evidence Dr. Vigoda opined the decedent had several risk factors which predisposed him for a fatal heart attack. These included uncontrolled diabetes, enlarged heart, acute pulmonary edema, a history of angina, hypertension, hypertrophy, and congestive heart failure. (Tr. April 2, 2002, pp. 16-18). Further, Dr. Vigoda opined there was no relationship between the decedent’s employment activities and the fatal heart attack. (Tr. April 2, 2002, p. 22).
Crediting Dr. Vigoda’s testimony the ALJ found the decedent’s fatal heart attack was caused by a myriad of preexisting risk factors and not the employment. Consequently, the ALJ denied and dismissed the claim for death benefits.
On review the claimant contends there is substantial evidence the decedent’s heart attack was work-related. The claimant contends the claimant transferred from the Chipeta Facility to the Fourth Street Facility due to work-related stress, and alleges that stress caused the decedent to suffer sleep deprivation. The claimant contends these “risk factors” predisposed the decedent to a heart attack and, thus, she argues the fatal heart attack was work related.
Section 8-41-302(2), C.R.S. 2002, establishes a two prong test of compensability where the claim for workers’ compensation benefits is based upon a heart attack. The claimant must not only show that the decedent experienced an “unusual exertion arising out of and within the course of the employment,” the claimant must also prove 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). An exertion meets the statutory definition of an “unusual exertion” if it is unusual in kind and quality when considered in comparison to the work history of the decedent. Vialpando v. Industrial Claim Appeals Office, supra; Townley Hardware Co. v. Industrial Commission, 636 P.2d 1341 (Colo.App. 1981).
The determination of whether the claimant sustained her 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. 2002.
Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985) In determining whether the ALJ’s findings are supported by substantial evidence, we must view the evidence in the light most favorable to the prevailing party. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951).
There is substantial evidence in Dr. Vigota’s testimony to support the ALJ’s determination that the decedent’s fatal heart attack was not caused by any unusual exertion at work. Consequently, it is immaterial that the record contains some contrary evidence which, if credited, might a contrary conclusion. This is true because under the substantial evidence standard, the existence of conflicting evidence does not lessen the import of substantial evidence in favor of a conclusion. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090
(Colo.App. 1999); F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985).
In any case, the claimant contends the employer asked the decedent to come into work even when he was sick and, therefore, she argues that the testimony of employer’s witnesses to the effect that the decedent was encouraged to take time off work is not credible. The claimant also disputes the testimony that the decedent preferred to work instead of being home.
We may not set aside a credibility finding unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Consequently, the ALJ’s credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, P.3d 558 (Colo.App. 2000). We perceive no extreme circumstances here.
The evidence was subject to conflicting inferences. However, there is substantial evidence in the testimony of the employer’s witnesses to support the ALJ’s determination that the decedent voluntarily worked long hours because he enjoyed his job at the Fourth Street Facility and not because he was required to work overtime.
Where, as here, the record was subject to conflicting inferences it is the ALJ’s sole prerogative as the fact finder to determine the inference to be drawn and we may not substitute our judgment for the ALJ in this regard. Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985). Therefore, we decline the claimant’s invitation to do so. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
Finally the claimant disputes the ALJ’s determination that the claimant suffered from hypertension. However, the July 27, 2000 and March 6, 2000 medical reports of Dr. Morris; the August 31, 1999 report of Dr. Hehmann, and the August 21, 1999 hospital admission sheet contain substantial evidence that the decedent had hypertension which was treated with Tenormin. (See Claimant’s Rule VIII(I)(1) Submission of Records #33, 38). Consequently, the claimant has not established grounds which afford us a basis to interfere with the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 9, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed April 28, 2003 to the following parties:
Esther Phillips, 579 Norwood Rd., Montrose, CO 81401
Community Options, Inc., P. O. Box 31, Montrose, CO 81402
Legal Department, Pinnacol Assurance — Interagency Mail
Merrily S. Archer, Esq., 600 17th St., #1600N, Denver, CO 80202 (For Respondents)
BY: A. Hurtado