W.C. No. 4-374-591Industrial Claim Appeals Office.
August 06, 1999.
FINAL ORDER
Claimant seeks review of a Supplemental Order of Administrative Law Judge Friend (ALJ) which denied his claim for benefits. The claimant contends that findings of fact contained in the ALJ’s specific findings are inconsistent with the ALJ’s Summary Order. Further, the claimant contends his fall is compensable under the positional risk doctrine, and that injuries from the fall were caused or aggravated by special hazards of the employment. We affirm.
In a Supplemental Order dated May 13, 1999, the ALJ found the claimant was injured at work on March 10, 1998, when he fell while climbing two flights of stairs. Each flight of stairs contained nine steps, and the flights were separated by a landing. The steps were made of concrete with a “metal strip on the edge of each step.”
The ALJ found that as the claimant was ascending the second flight of stairs his right foot collapsed and his left leg fell onto a step. The claimant then fell several steps to the landing.
It is undisputed that the claimant previously sustained a compensable back injury in 1995. This injury left the claimant with numbness and tingling in his right foot, and medical records reveal a subsequent history of stumbling and falling. (Eg. Report of Dr. Kopich, March 13, 1998). The claimant also sustained a non-industrial injury to his left knee on March 6, 1998. He slipped in the snow and struck his knee on a bumper. The claimant was released from treatment with instructions to use a crutch, but was not doing so when he fell at work on March 10. Finally, the claimant broke his left ankle when he fell down at home on March 13, 1998. The claimant testified he was descending three steps into his garage with his right leg “gave out from under me.”
The ALJ found that the claimant’s injury on March 10, “occurred as a result of the claimant’s pre-existing condition.” Under these circumstances, the ALJ concluded that the claimant was required to prove that a “circumstance peculiar to the work environment posed a special hazard of employment.” However, the ALJ determined the concrete steps are a ubiquitous condition generally encountered both inside and outside of employment, and that the metal strips on the edge of the stairs did not cause or aggravate the claimant’s injuries. Thus, the ALJ denied the claim.
I.
On review, the claimant first contends the ALJ’s order must be set aside because there is a conflict between findings contained in the ALJ’s Summary Order and findings of fact contained in the ALJ’s specific findings dated November 4, 1998. The claimant further contends the ALJ’s Supplemental Order is ambiguous concerning whether it was the claimant’s right foot or left leg which was the pre-existing condition which caused the claimant to fall. We find no error.
Generally, it is the ALJ’s specific findings of fact and conclusions of law, not the Summary Order, which are the subject of our review. In this case, the ALJ entered a Supplemental Order pursuant to § 8-43-301(5), C.R.S. 1998. This order was appealed to us pursuant to § 8-43-301(6), C.R.S. 1998. Because it is the Supplemental Order which we review, any actual or perceived inconsistency between the Supplemental Order and the Summary Order is of no consequence.
Further, the fact that counsel for the respondents prepared the ALJ’s initial findings of fact and conclusions of law without first submitting them to claimant’s counsel affords no basis for relief on appeal. Generally, the mere fact that counsel for one of the parties prepares a court’s order does not demonstrate error unless the findings are so inadequate that they do not indicate the basis of the order. Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966). This is particularly true where the record reveals the judge reviewed the findings submitted by counsel and adopted them as his own. Stevens v. Humana of Delaware, Inc., 832 P.2d 1076 (Colo.App. 1992).
Here, it is true that counsel for respondents submitted the initial specific findings of fact and conclusions of law to the ALJ, and did so without affording claimant the opportunity to object. Nevertheless, the claimant appealed the initial findings of fact and conclusions of law, and therefore, was given an opportunity to make all possible objections to the findings. The ALJ then entered the Supplemental Order after considering the claimant’s objections to the initial specific findings. Consequently, the claimant received a fair opportunity to object to the ALJ’s specific findings, and the Supplemental Order necessarily represents the ALJ’s personal assessment of the evidence and legal conclusions.
Neither do we perceive any inadequacy in the ALJ’s Supplemental Order concerning the cause of the claimant’s fall of work. As a general rule, ALJ’s are not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. Rather, it is sufficient if the order contains specific findings as to the evidence which is deemed persuasive and determinative. Riddle v. Ampex Corp. 839 P.2d 489 (Colo.App. 1992). Here, the ALJ’s Supplemental Order mentions problems with the claimant’s right foot and the left lower extremity. Although the conclusions of law refer to a pre-existing condition, the order read in its entirety indicates the ALJ believed that problems with both lower extremities played a role in causing the claimant to fall.
II.
The claimant next contends the injuries sustained on March 10 are compensable regardless of any “special hazard” encountered in the workplace. The claimant asserts we should hold his injury compensable because, but for the claimant’s employment, he would not have been injured. The claimant cites H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1992), as authority for this proposition. We disagree.
The claimant’s argument notwithstanding, the law of Colorado is well-established that if the precipitating or direct cause of an employee’s fall is a pre-existing physical infirmity injuries resulting from the fall are not compensable unless a special hazard of employment elevates the risk of injury or increases the seriousness of the injuries sustained. National Health Laboritories v. Industrial Claim Appeals Office, 844 P.2d 1259
(Colo.App. 1992); Gates Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo.App. 1985). The rationale for this rule is that, unless a special of hazard of employment increases the risk or extent of injury, a fall initiated by the claimant’s pre-existing condition does not bear sufficient causal relationship to the employment to conclude the fall “arose out of” the employment See Ramsdell v. Horn, 781 P.2d 150 (Colo.App. 1989); 1 Larson’s Workers’ Compensation Law, § 9.01 [4] [b].
It follows the claimant’s reliance on positional risk analysis is misplaced. The question of whether a “but for” analysis is appropriate in the case of a truly “unexplained fall” presents a different issue. In unexplained fall cases some courts hold the mere fact the injury occurred in the course of employment creates a sufficient causal relationship between the employment and injury to justify an award of compensation. 1 Larson’s Workers’ Compensation Law, § 7.04 [1] [a]. Whether this rule applies in Colorado is debatable. See Rice v. Dayton Hudson Corp., W.C. No. 4-386-678 (July 29, 1999). However, the positional risk analysis does not apply in this case because the ALJ found as a matter of fact that the claimant’s injury was initiated by his personal, pre-existing conditions.
H H Warehouse v. Vicory, supra, is not authority to the contrary. In that case the court rejected a positional risk analysis because the event which aggravated the claimant’s pre-existing cancer was the sudden opening of a door. The court reasoned that the opening of the door did not constitute a “neutral force” for purposes of the positional risk analysis, but was instead “an event associated with employment.”805 P.2d at 1168.
III.
Claimant next contends the ALJ erred in concluding that the 18 concrete steps with metal edging did not constitute a special hazard of employment which caused or contributed to the claimant’s injuries. The claimant asserts that if the issue is viewed as one of fact, there is no evidence in the record to support the conclusion the steps constitute a ubiquitous condition. The claimant also argues that if the issue is one of law it is “clear” the number of the stairs caused him to fall, and that the composition of the stairs contributed to his injuries including a cut on his left knee. We find no error.
In Gates Rubber Co. v. Industrial Commission, supra, the court held as a matter of law that a level concrete floor does not constitute a special hazard of employment because such surfaces are encountered on sidewalks, parking lots, streets and in one’s home. 705 P.2d at 7. The apparent rationale for the holding is that the risks associated with a level concrete floor (in the context of the claimant’s pre-existing condition) were no greater at the place of employment than they were elsewhere.
In our view, flights of stairs constructed of hard material, be it concrete, metal, or some other substance, are common enough in parking lots, on sidewalks, and in public buildings and homes to be considered ubiquitous as a matter of law. Neither is this a case where we can say the number of steps involved presented a unique or special hazard of employment. Cf. Ramsdell v. Horn, supra (25 foot scaffold constituted a special hazard because the employment required the claimant to work above ground). In fact, the claimant himself testified that his home contains thirteen steps to the basement level. (Tr. p. 20). Consequently, we conclude the stairs at the claimant’s place of employment presented no greater risk to the claimant than he would have encountered in the world at large.
Because we conclude the steps, regardless of their composition, did not represent a special hazard, it is unnecessary to consider the claimant’s argument that the ALJ erred in finding the metal edging did not contribute to the claimant’s injuries.
IT IS THEREFORE ORDERED that the ALJ’s Supplemental Order dated May 13, 1999, 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. 1998.
Copies of this decision were mailed August 6, 1999 the following parties:
Dennis Gaskins, 6423 W. 113th Ave., Westminster, CO 80020
Golden Automotive Group, 15601 W. Colfax Ave., Golden, CO 80401
Paul A. Finamore, CR, Mid-Century Insurance Company, P.O. Box 378230, Denver, CO 80237
James E. Elliott, Jr., Esq., Mark D. Elliott, Esq., 7884 Ralston Rd., Arvada, CO 80002-2434 (For Claimant)
Christian M. Lind, Esq., Orchard Place II, Suite 106, 5975 Greenwood Plaza Blvd., Greenwood Village, CO 80111 (For Respondents)
BY: A. Pendroy