Opinion
W.C. No. 4-372-511
October 29, 1999
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) denying his claim for benefits based on a heart attack. The claimant contends the ALJ misapplied the legal standard of "unusual exertion" to the facts of this case. We find no error, and therefore, affirm the order.
The claimant, a long haul truck driver, testified that he sustained a myocardial infarction as a result of "unusual exertion" on February 15, 1998. The claimant testified that on the evening of February 15 he was required to push a heavy trailer hitch, known as a "congear," up a slight incline in order to hook up a trailer. The claimant testified that it was "very rare" that he would be required to push the congear without the assistance of his driving partner or others working at the terminal. (Tr. pp. 20, 24-25, 40).
However, the respondents presented the testimony of a manager. This witness testified that the terminal where the claimant sustained the heart attack was paved and virtually flat. Further, he stated that it was not unusual for drivers to push congear without the assistance of other workers. In fact, the manager stated that it would have been unusual for the claimant to wake his partner to obtain assistance because it would have interfered with sleep required by the Department of Transportation. (Tr. pp. 43-46). He also testified that he would never push a congear up an incline because he "couldn't do it." (Tr. p. 48).
The evidence also contains a "job description" listing the duties of truck drivers employed by the respondent. The job description states that on 5 to 10 percent of runs the driver may be required to move congear weighing 2,600 pounds up to 50 feet. The claimant testified this job description accurately reflected his duties. (Tr. p. 14).
The ALJ found that the manager's testimony was "credible and persuasive." Consequently, the ALJ found that drivers moved congear both with and without a partner as a normal part of their duties. The ALJ also found it was standard policy "to not awaken the sleeping partner to make the congear change." Under these circumstances, the ALJ concluded the claimant's "work duties preceding the heart attack were a sufficiently routine part of [his] work related activities that such duties were not sufficiently `unusual' in nature to sustain the burden of proof with regard to the compensability question."
On review, the claimant contends the ALJ "misapplied the standard of law requiring unusual exertions to the facts of this case." Essentially, the claimant asserts that pushing the congear up a slight incline amounted to unusual exertion. We find no merit in this contention.
Section 8-41-302(2), C.R.S. 1999, states that accident, injury, or occupational disease "shall not be construed to include disability or death caused by a heart attack unless it is shown by competent evidence that such heart attack was proximately caused by an unusual exertion arising out of and within the course of the employment." In determining whether there was an "unusual exertion" the ALJ is required to compare the claimant's duties at the time of the heart attack to the claimant's job history. The ALJ may consider whether the activities at the time of the heart attack were unusual in kind or quantity when compared to the job history. Vilapando v. Industrial Claim Appeals Office, 757 P.2d 1152 (Colo.App. 1988).
The question of whether the claimant proved an "unusual exertion" is one of fact for determination by the ALJ. Wackenhut Corp. v. Industrial Claim Appeals Office, 975 P.2d 1131 (Colo.App. 1997). Because the issue is factual in nature we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, evidence not explicitly credited by the ALJ is considered to have been discredited. Cooper v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 98CA1343, March 18, 1999).
The claimant's argument notwithstanding, we see no indication the ALJ applied an incorrect legal standard in assessing the evidence. The ALJ's findings of fact and conclusion of law reflect his determination that the claimant's activity on the evening of February 15 was not unusual in the context of the ordinary duties the claimant was required to perform as a truck driver.
Moreover, implicit in the ALJ's order is the rejection of the claimant's testimony that he was required to push the congear up an incline. Instead, the ALJ credited the testimony of the manager who stated that the area where the trailer was parked was virtually flat. This conclusion is reinforced by reference to the ALJ's Summary Order in which he stated, "either the incline was so slight that it was equivalent to level ground, a usual activity for claimant, or it was so steep that claimant would have been unable to move the gear." See CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev'd. on other grounds, 789 P.2d 269 (Colo. 1989) (it is proper to refer to contents of a summary order when interpreting findings contained in the final order).
In light of this disposition we need not consider the respondent's contention that the order may be sustained on the theory that the ALJ found no causal connection between the claimant's employment and the myocardial infarction.
IT IS THEREFORE ORDERED that the ALJ's order dated November 24, 1998, it is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed October 29, 1999 to the following parties:
Manuel G. Vigil, 126 S. Demaret Dr., Pueblo West, CO 81007
Northwest Transport Service, P.O. Box 710, Denver, CO 80201-0710
Brian Seigal, Helmsman Mgmt. Services, P.O. Box 3539, Englewood, CO 80155-3539
Janet L. Frickey, Esq., 940 Wadsworth Blvd., 4th Fl., Lakewood, CO 80215 (For Claimant)
Cassandra M. McCasland, Esq., 1700 Broadway, Ste. 1910, Denver, CO 80290 (For Respondent)
BY: A. Pendroy