8-41-302. Scope of terms - "accident" - "injury" - "occupational disease".

Statute text

(1) "Accident", "injury", and "occupational disease" shall not be construed to include disability or death caused by or resulting from mental or emotional stress unless it is shown by competent evidence that such mental or emotional stress is proximately caused solely by hazards to which the worker would not have been equally exposed outside the employment.

(2) "Accident", "injury", and "occupational disease" shall not be construed to include disability or death caused by 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.

History

Source: L. 90: Entire article R&RE, p. 480, 1, effective July 1.

Annotations

Editor's note: This section is similar to former 8-41-108 as it existed prior to 1990.

Annotations

 

ANNOTATION

Annotations

Annotator's note. Since 8-41-302 is similar to 8-41-108 as it existed prior to the 1990 repeal and reenactment of the "Workers' Compensation Act of Colorado", articles 40 to 47 of this title, relevant cases construing that provision have been included in the annotations to this section.

Fact of preexisting hypersensitivity or secondary cause does not defeat a claim for occupational disease unless it can be shown that a nonindustrial cause was an equally exposing stimulus. Hall v. Indus. Claim Appeals Office, 757 P.2d 1132 (Colo. App. 1988).

Manifestation of preexisting mental condition resulting from job-related mental or emotional stress is compensable. Ft. Logan Mental Health Center v. Walker, 723 P.2d 740 (Colo. App. 1986).

In order for a mental condition to be compensable under the Workers' Compensation Act, the hazards causing the stress must be more attributable to the workplace than to claimant's personal problems. Young v. Indus. Claim Appeals Office, 860 P.2d 591 (Colo. App. 1993).

The term "solely" in subsection (1) could be interpreted as meaning "primarily" where the phrase "equally exposed" envisions some exposure to stress outside employment and where compensability arises only on the condition that there not be equal exposure to a stressor both within and outside the workplace. Young v. Indus. Claim Appeals Office, 860 P.2d 591 (Colo. App. 1993).

Injury caused by emotional or mental stress compensable. Compensation may be awarded when job-related mental or emotional stress proximately causes an injury or occupational disease which results in disability or death. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985).

Provision is constitutional. Although it requires a different or more severe standard for establishing that a heart attack is a compensable "accident" or "injury" than is required for other types of accidents or injuries, this provision does not deny equal protection of the law and is therefore constitutional. Claimants In re Kohler v. Indus. Comm'n, 671 P.2d 1002 (Colo. App. 1983).

"Overexertion" was not a prerequisite to a recovery of workmen's compensation for a heart attack sustained in the course of employment; rather, the legislative intent in the 1965 amendment of this section was to make compensable an injury or death which results from exertion in the performance even of usual duties within an employee's scope of employment; there must, of course, be the chain of causation necessary as in all workmen's compensation cases. T & T Loveland Chinchilla Ranch v. Bourn, 173 Colo. 267, 477 P.2d 457 (1970).

For accidents occurring between the effective date of the 1965 amendment to former subsection (2) and July 1, 1971, the 1965 amendment allowing for an award for a heart attack without a showing of overexertion is applicable. Pub. Serv. Co. v. Indus. Comm'n, 189 Colo. 153, 538 P.2d 430 (1975).

Legislative intent relating to unusual exertion requirement. The intent of the general assembly in enacting the unusual exertion requirement was to ensure that only those heart attack-related injuries resulting from more than the normal work activities of the claimant are compensable. Prestige Homes, Inc. v. Legouffe, 658 P.2d 850 (Colo. 1983).

Where worker's heart attack was an aggravation of preexisting heart disease and the heart attack was not caused by an accident, the worker was required to prove unusual exertion in order to be eligible for workers' compensation benefits. Vialpando v. Indus. Claim Appeals Office, 757 P.2d 1152 (Colo. App. 1988).

Intent of the 1971 amendment requiring overexertion for a compensable heart attack was to place the law as it existed before the 1965 amendment which did require overexertion. Pub. Serv. Co. v. Indus. Comm'n, 189 Colo. 153, 538 P.2d 430 (1975).

Overexertion not element of claim where heart condition aggravated by trauma. Where there is a claim of aggravation of a preexisting heart condition by trauma, claimant must show his preexisting heart disease was aggravated by trauma, and, in such a case, overexertion is not an element. Legouffe v. Prestige Homes, Inc., 634 P.2d 1010 (Colo. App. 1981), rev'd on other grounds, 658 P.2d 850 (Colo. 1983).

Unusual exertion doctrine is to be applied according to employee's work history rather than the work patterns of his profession in general. Beaudoin Constr. Co. v. Indus. Comm'n, 626 P.2d 711 (Colo. App. 1980).

Determination of baseline level of fitness required. If the unusual exertion doctrine is to apply on an individual basis, then a baseline level of fitness of the individual must be determined before a trier of fact can decide what constitutes unusual exertion for that particular individual. This determination must necessarily include consideration of periods of unemployment and consequent deconditioning. Beaudoin Constr. Co. v. Indus. Comm'n, 626 P.2d 711 (Colo. App. 1980).

Application in context of employer-sponsored fitness program. In order to determine whether an injury suffered by an employee while engaging in an exercise program is compensable under the Workers' Compensation Act, a court should look to the following factors: (1) Whether the injury occurred during working hours; (2) whether the injury occurred on the employer's premises; (3) whether the employer initiated the employee's exercise program; (4) whether the employer exerted any control or direction over the employee's exercise program; and (5) whether the employer stood to benefit from the employee's exercise program. Price v. Indus. Claim Appeals Office, 919 P.2d 207 (Colo. 1996); Wackenhut Corp. v. Indus. Claim Appeals Office, 975 P.2d 1131 (Colo. App. 1997).

Overexertion not required where heart attack related to accident. Where the claimant alleges that his heart attack was causally related to an accident as defined by subsection (1), the claimant is not required to show that the injury was also causally related to overexertion. Prestige Homes, Inc. v. Legouffe, 658 P.2d 850 (Colo. 1983); Vialpando v. Indus. Claim Appeals Office, 757 P.2d 1152 (Colo. App. 1988).

But is required where no accident occurs. Where no accident occurred, the claimant is required to show that the heart attack was proximately caused by an unusual or extraordinary overexertion arising out of the claimant's employment. Prestige Homes, Inc. v. Legouffe, 658 P.2d 850 (Colo. 1983).

Heart attack victim's work activities compared to normal work activity. A claimant's work activities near the time of a heart attack must be compared to his normal work activities to determine if the former were unusual; activities claimant would have participated in had he not been working are irrelevant. Townley Hdwe. Co. v. Indus. Comm'n, 636 P.2d 1341 (Colo. App. 1981).

The "unusual overexertion" doctrine must be applied according to the employee's work history. The employee's activities near the time of a heart attack must be compared to his normal work activities in order to determine if the former were unusual. Claimants In re Kohler v. Indus. Comm'n, 671 P.2d 1002 (Colo. App. 1983); Vialpando v. Indus. Claim Appeals Office, 757 P.2d 1152 (Colo. App. 1988).

Unusual duties may require more, or less, or the same exertion as do the normal activities of an employee. And, it is incumbent upon the claimant to prove unusual exertion in the performance of his duties. Claim of Henricks, 676 P.2d 1220 (Colo. App. 1983).

"Unusual" exertion may be of a kind that recurs. Where decedent was employed as a security guard and suffered a heart attack while preparing for his annual physical fitness test, the exertion was unusual within the meaning of subsection (2). Wackenhut Corp. v. Indus. Claim Appeals Office, 975 P.2d 1131 (Colo. App. 1997).

A heart attack resulting from unusual mental stress or tension arising out of and in the course of employment is compensable. City & County of Denver v. Indus. Comm'n, 40 Colo. App. 202, 573 P.2d 562 (1977), modified, 195 Colo. 431, 579 P.2d 80 (1978); Matter of Carr v. Indus. Comm'n, 709 P.2d 52 (Colo. App. 1985); Vialpando v. Indus. Claim Appeals Office, 757 P.2d 1152 (Colo. App. 1988).

Even if events preceding heart attack constituted unusual exertion, a finding that such events did not cause heart attack is fatal to claim for benefits. Kinninger v. Indus. Claim Appeals Office, 759 P.2d 766 (Colo. App. 1988).

When unusual or extraordinary stress may occur. For purposes of determining the right to workmen's compensation, "unusual or extraordinary" stress may occur while the employee is engaged in activities of the same general type as those in which he is regularly employed. City & County of Denver v. Indus. Comm'n, 40 Colo. App. 202, 573 P.2d 562 (1977), modified, 195 Colo. 431, 579 P.2d 80 (1978); Matter of Carr v. Indus. Comm'n, 709 P.2d 52 (Colo. App. 1985).

Standard of review for claim based upon heart condition. Where a claim for benefits was based upon the claimant's heart condition, the appropriate standard for the industrial commission's review was whether the claimant's heart condition was the result of an accident, injury, or occupational disease which meets the conditions of 8-52-102. Eisenberg v. Indus. Comm'n, 624 P.2d 361 (Colo. App. 1981).

Medical certainty of heart attack cause not necessary. The evidence must establish a causal connection between unusual exertion and a heart attack with reasonable probability, but it need not establish it with reasonable "medical" certainty. Townley Hdwe. Co. v. Indus. Comm'n, 636 P.2d 1341 (Colo. App. 1981).

And evidence of emotional or mental tension is not prerequisite to recovery for a heart attack caused by job-related overexertion and stress. Townley Hdwe. Co. v. Indus. Comm'n, 636 P.2d 1341 (Colo. App. 1981).

Expert medical testimony not required to prove causal connection between heart attack and employment and circumstantial evidence may be sufficient to prove such causal connection. In re Talbert, 694 P.2d 864 (Colo. App. 1984).