*1 аnd in judgment against city The “reduces the but it provide) its so less terms judgment Gray is affirmed. The favor of to the extent against the others claim is favor of Kussman city and in against or the the release stipulated by amount any aside, is remanded set covenant, of consideration the amount or in judgment for the of a new entry trial it, grеater, whichever is court paid [i]t party it giv- opinion. is Each discharges tortfeasor to whom consistent this on any appeal. or its costs this for contribution shall her own liability pay en from all (emphasis supplied) other tortfeasor.” KIRSHBAUM, JJ., concur. KELLY case, city and the Gray present
In the city The entitled joint tortfeasors. remand, On statutory to receive the credit. $78,048.47 against city judgment $35,000, and interest be reduced
shall figure. revised recomputed
shall be
IV. also that the trial city contends IN MATTER OF the CLAIMANTS $1,022 in costs to awarding court erred in KOHLER, OF J. DEATH Don Kussman. These consisted of Kussman’s Petitioners, costs, fee, portion and a docket service city expert argues witness fees. The that, corporation, it is a municipal since COMMISSION OF COLO- INDUSTRIAL improper specif such an award is without RADO, Department Em- of Labor and mandating award of costs. ic statute Colorado; Nielson’s, ployment, State of disagree. way The rule is the other Transportation Inc., Insurance Com- around. pany, Respondents. 54(d) provides: C.R.C.P. No. 82CA0052. “Except express therefor provision when Appeals, Colorado Court this
is made either in statute of state 1. Division rules, in these costs as of shall allowed prevailing party course to the unless the April 1983. ” court otherwise directs .... May 26, Rehearing Denied 1983. 13-16-104, See C.R.S.1973. § Denied Oct. 1983. Certiorari “Thus, there a statute or rule costs, prohibiting the award specifically
trial may courts exercise their discretion to
award a prevailing party.” costs to Ross Romero,
miller v.
There is prohibition, no such statute or rule.
And, 24-10-107, (1982 Repl. 10), sovereign
Vol. states: “Where immuni
ty is under abrogated defense section
24-10-106, liability public entity
shall be determined the same manner as public entity private person.” were a
V. city other contention of the is with-
out merit. *2 Dawes, Durango,
Robert C. L. Jerry Bean, Cortez, Marcus, Ruck, Wells, Flynn & P.C., Marcus, Mich., Benjamin Muskegon, for petitioners. and ex- Ritsema, encountered P.C., frequently those Evans, A. Fredric
Hall & MacFarlane, Therefore, Atty. job. J.D. in his еxer- Vaughan, perienced Gordon unusual, Atty. Deputy Gen., Hennessey, F. was not Richard tion Gen., Parker, Den- Gen., Atty. Asst. or an Alice is not an accident ver, C.R.S.,1973, respondents. within injury 8-41-108.”
ENOCH, Judge. Chief of Petitioners, surviving dependents as I. order of decedent, review of the final seek review, the first contend petitioners On affirming Commission Industrial hearing officer the evidence before the that peti- denial of benefits hearing officer’s prior that activities established decedent’s the dece- arising claim from tioners on their “unusual exertion” to his death constituted We affirm. a heart dent’s death attack. meaning the workmen’s com- within the of Kohler, employed Decedent, J. was Don act, decedent’s and that therefore pensation Neilson’s, (employer), Inc. by respondent disagree. compensable. death Employ- his death in 1979. from 1972until 8-41-108(2.5), C.R.S.1973 Section supplying engaged er in primarily as follows: Cum.Supp.), provides sites, which it rock to construction crushed “ ‘Accident,’ ‘оccupational ‘injury,’ crushing operations did three rock through disease,’ to include shall be construed of and New For most Colorado Mexico. or disability death caused was a employer, decedent career competent it is shown evidence superintendent crushing of one the rock of wаs proximately that such attack operations. three months Approximately arising by unusual exertion out of caused prior gen- he was promoted to his employ- within the of the course of eral all three crushers. (emphasis supplied) ment.” 14, 1979, Saturday, July On Cortez, Colorado, to the from travelled & Denver v. In City County оf Mexico, Shiprock, super- at New 431, 579 dustrial vise in the absence of the Court, (1978), Supreme construing regular was ill. At superintendent, who extraordinary the “unusual or overexer su- decedent attended to various Shiprock, effect, upheld tion” standard then in Upon that pervisory learning duties. sergeant police awаrd of benefits to a who water, drinking were in need of employees period during suffered a heart attack had get decedent offered to drive into town work, unusually long hours and extra more water. He was later found uncon- following language: with the car, and to a transported scious in his doctrine “The unusual ovеrexertion must he died. subsequently local where hospital, emplloyee’s applied according com- applied
Petitioners for workmen’s patterns history work rather than work pensation Affirming a ref- death benefits. profession in general.” order, the de- eree’s Industrial Commission being this language equally We view as nied on the basis that the exertion benefits statutory under the stan- applicable present job at the time of the heart claimant’s dard of “unusual exertion.” there- was not “unusual” and that attack near Thus, the decedent’s activities fore heart attack was not an “accident” compared time of the heart attack must be within the of the “injury” to his normal work activities order to Compensation Workmen’s Act. The critical if the determine former unusual. portion findings of the referee’s is as fol- Hardware Townley Co. v. Com- lows: mission, (Colo.App.1981). finds the activities en- “The referee case, hearing instant officer during the wеek In the gaged the claimant work evidence of decedent’s histo- preceeding his death were the same as received witnesses, Cum.Supp.) testimony variety requires from a different or ry son, wife and and sev- severe standard for including establishing decedent’s that a testified compensable eral Decеdent’s wife heart attack is a co-workers. “accident” or about the than is nothing “injury” types that there was unusual for other injuries, provision the week accidents or such during stress decedent was under denies petitioners equal co-workers testi- law protection before his death. Several promotion fiеd decedent took his “in is therefore unconstitutional. We do not stride,” that there was difference in the agree. no way he after handled his before or equal cases, As in all protection died, promotion, day and that on this court must first determine the standard particularly decedent undertook no stressful to be in assessing validity used activity any physical nor labor. On the challenged legislation. Olson v. Public Ser hand, other decedent’s son testified that Co., vice P.2d 780 *4 “very agitated” decedent was “preoccu- right Because the to disability benefits is pied” during the week his death. before right, not a fundamental and because the
Anothеr employee stated that during the
of employees
class
by
disabled
heart attacks
week,
same
decedent was “more intense”
class,
is not a suspect
the rational basis test
“nothing
pleased
him.” Based
must be applied.
Zimmerman,
Stark v.
See
evidence,
upon
conflicting
hearing
this
the
If substantial evi dence, findings of the Commission based on That requires test that the state conflicting binding evidence are review. only need show challenged provi that the Homes, Prestige Legouffe, Inc. v. 658 P.2d legitimate sion is rationally related a (Colo.1983). 850 sup Substantial evidence Kezer, state interest. Bellendir v. 648 P.2d ports the findings here. (Colo.1982); 645 Fritz Regents Colorado, of University 335, 196 Colo. 586
II. (1978). Thus, 23 P.2d can classes be treated reject so petitioners’ differently, long as unequal conten this treat tion that law ment is based on applicable in reasonable differenсes. Colorado requires 273, 194 only Sapp, that the Bushnell v. Colo. experienced stress 571 P.2d (1977). test, 1100 In prior applying decedent to this be stat death utory may than the stress of scheme everyday life in order to be invalidated no set of can reasonably constitute “unnusual facts conceived to exertion” within the justify County of the Act. it. Millis v. Board of Com missioners, (Colo.1981). 626 652 P.2d Fur above, As discussed in applying the “un- ther, is every presumed statute constitu test, usual exertion” proper focus is tional proven beyond a reasonable upon the activities and exertion of the em- doubt to be v. Lyon, invalid. Turner 189 ployee at the time of his heart attack when 234, 1241 P.2d compared to his normal work activities and test, applying the usual the rational exertion attendant basis there- thereon. fore, Townley legitimate Hardware Co. we must first identify v. Industrial Com- mission, supra; purpose state this City legislation purport- see & of which County Den- furthers, ver v. then edly determine whether suрra. Hence, an petitioners’ objective rationally such furthered regard contention this or system legisla- without merit. the scheme created Lujan
tion. See v. Colorado State Board of Education, III. provide
Petitioners’ final contention is that
act
purpose
inso-
is to
far
8-41-108(2.5),
who,
as
C.R.S.1973
monetary
employees
relief to
while
TURSI, Judge, dissenting.
suf
employer,
for the
performing services
result of
death as a
disability
fer
or
dissent.
respectfully
I
and in the
arising out of
injury
or
accident
review here contains
The order
we
8-52-
employment. Section
course of their
following
of fact:
findings
Bel
(1982 Cum.Supp.); see
102, C.R.S.1973
the re-
Kezer,
legitimatе
employed by
is a
had been
supra. This
lendir v.
“[Kohler]
Price,
Edwards v.
1972. For a
purpose.
January
state
since
spondent
order to effectu
(1976). In
he was classified
years,
number
Assembly,
the General
purpose,
ate this
super-
superintendent where
crusher
8-41-108,
(1982 Cum.
enacting §
one stone crusher.
vised the
“in
terms
to define the
has chosen
Supp.),
proceed-
months
approximately
For
three
appli
and to limit
and “accident”
jury”
general
his
he was
ing [sic]
cases
terms
of those
cability
having supervi-
exertion” is shown.
where “unusual
crushers located
sory responsibility over
reasonably
could have
Assembly
General
Colorado;
New Mexi-
Shiprock,
Craig,
inherent dif
because of the
concluded that
co;
Mexico.
It was
Gallop,
New
many
ascribing
ficulty
witnesses that
unanimously agreed by all
particular events
attacks to
circumstanc
person
who
an intense
benefits,
claimant,
es,
in order to receive
and took his
was dedicated
prеsence
should be
show
per-
was a
seriously. He
responsibilities
performance
in the
unusual exertion
man.’
‘company
and a
His
fectionist
*5
duties,
that such exertion
and
employment
working
working days
hours
both as
to
attack.
related
the heart
causally
general
superintendent
crusher
limitation is arbi-
legislative
While this
by
were set
the
superintendent,
crusher
that
Assem-
in the sense
the General
trary
needed
done. Both be-
work that
to be
standard
have chosen some other
bly might
general
after
to
promotion
fore and
his
cases, our
by which to review heart attack
his work week
crusher
to
instant
is limited
inquiry in the
case
than 40 hours
consistently
was
more
statute, as
constitut-
presently
whether this
working days
consistently
his
were
ed,
in a
purposes
the
of the Act
furthers
days
five
a week.
It was common-
than
Kezer, supra.
rational manner. Bellender v.
the
for the decedent to be on
tele-
place
that it
conclude
does.
engaged
evening
in the
hоurs
phone
by
view is consistent with that taken
This
company business.
Supreme
the
Court:
U.S.
Colorado,
Craig,
“The crusher in
was
wel-
“In the area of economics and social
15,
operation
The
up May
set
1979.
had
fare,
Equal
does
violate the
a State
material
daily problems
being
with size of
because the
merely
Prоtection Clause
frequent
crushed
would cause
shut-
are im-
classifications made
its laws
Craig
of the
at
downs
crusher.
has some
perfect.
If the classification
running
above estimated cost and
basis,’ it
the
not offend
‘reasonable
does
was, therefore,
losing money. The fre-
prac-
‘...
simply
Constitution
becausе
crusher
shutdowns
contribu-
quent
”
it
in some inequality.’
tice
results
to the loss. There was no
ting
evidence
471,
Williams,
90
Dandridge v.
397 U.S.
the decedent was censored
[sic]
1153,
(1969) (quoted
S.Ct.
1007 Gifford, time the decedent Mountain v. P.M., at which Mobile Mix 660 7:30 P.2d would, on Mr. Cox that Satur- advised 14, go Shiprock to and oversee July day, 8-41-108(2.5), Pursuant crusher since the a claimant must Cum.Supp.), show was ill. On the crusher subject competent evidence that 13, had his evening July the decedent attack was caused proximately unusual of a complained dinner and sore throat. arising exertion out of and within the vomiting heavily rather but did He employment. course of the To construe this telephone have several conversations con- to preclude recovery statute so as on based cerning business activities. He was ex- highly continuous unusual exertion chest discomfort. On periencing dedicated employee, and devoted because July 14, go he did morning Shiprock employee always exerts himself be- at the location of the and arrived yond that discharge thereafter, he left to operation. Shortly duties, does violence not to the plain some for the crew and get water later statute, of the but language long in the parked was found vehicle beside recognized rule that the Workmen’s Com-
the road. Death followed after he was pensation Act is to be liberally construed hospital.” (emphasis transferred accomplish purposes its humanitarian of as- added) sisting injured workers and their families. In re Death See Claimants of Garner The cause of death was found to abe Corp., 194 Vanadium P.2d An of compensation heart attack. award following was denied on based conclu-
sions: majority’s reliance Denver v. In determining
“In whether there was un- dustrial 579 P.2d exertion, usual which is a question (1978) misplaced. In both that case fact, the in question exertion is measured and Beaudoin Construction Co. v. Industrial decedent, against history the work Commission, 626 711 (Colo.App.1980), claimant must show that quoted by majority rule was fash *6 causative exertion was more than the ex- ioned so as to cover exertion employ ertion attendant upon discharge performance ee in the acts considered not the decedent’s normal duties. From the emplоyees similarly engaged. unusual for fact, Here, however, finding above work employee’s pat [it concluded] that ‘the employment, was, itself, decedent’s both as tern in and of one of unusual exertion, therefore, a crusher a general his heart attack chronically if compensable injury constituted a causa Therefore, competent stressful. with respect de- tion established evidence. cedent, measuring benchmark un- supra, Denver moderately usual exertion was at adopts job rule evidence of stressful level and may support acute stress related stress an award for attack, preclude would be unusual does (emphasis recovery exertion.” added) job stress associated unusual exer tion is chronic rather than acute. Compensation Workmen’s Act must be liberally construed accomplish its be- I would therefore set aside the order neficent social and protective purpоses. making no award and remand the cause to Claimants in of Hampton re Death v. Di- the Commission with directions to make Labor, 31 Colo.App. findings, using standards, rector Division objective Further, enacting whether decedent was in fact ex- unusually statute, presumed just erting it must be that a himself whether there was and reasonable result is intended. Section related stress associated therewith which 2-4-201(l)(a), Repl.Vol.). heart attack.