*1 and 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, greater, 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 exer- 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,’ ‘occupational ‘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 was 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 of 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 award 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 overexertion 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 week 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 Decedent’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 fied 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

Another 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 638 P.2d 843 (Colo.App.1981); Stevenson v. officer made the set out findings above. Commission, 234, Industrial 190 Colo. 545 (1976). 712 P.2d supported

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 differences. 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 supra. 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, legitimate 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 presence 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 hours 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 Protection 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 because 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. 25 L.Ed.2d 491 problems. otherwise blamed for these v. Manor Vail Condominium Association preceeding the week the [sic] Vail, 62, Town of 199 Colo. part was in for of the Craig (1980)). 13, Friday, he returned July week. On to Order affirmed. with Mr. who is the Cortez Gene Cox re- superintendent operations KIRSHBAUM, J., concurs. engaged in spondent employer. They TURSI, J., company approximately dissents. until business

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 employees 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 purposes. 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.