W.C. No. 4-571-907.Industrial Claim Appeals Office.
November 8, 2004.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) insofar as it determined the claimant sustained a compensable injury. The respondents dispute the sufficiency of the evidence to support the ALJ’s finding that the injury arose out of the claimant’s employment. According to the respondents, the evidence establishes that the injury was caused by a preexisting condition or conditions. We affirm.
The claimant was employed as a truck driver trainee. On March 5, 2003, the claimant and his supervisor, Ayers, arrived at the employer’s terminal. Ayers entered the sleeping compartment of the truck cab to retrieve personal items. The claimant opened the passenger side door. The cab door did not close, but Ayers heard a loud voice outside. Ayers got out of the truck and found a third person standing over the claimant. The claimant was lying unconscious with his head pointed away from the truck.
Ayers described the proper method for climbing out of the truck. Because the floorboard is 47 inches above the pavement, a passenger is required to step out of the truck, grab two bars in succession, and back down two steps. The steps are 33 inches and 15 inches above the ground.
Ayers also testified that the claimant tended to “exit the truck the wrong way.” Instead of climbing down backwards, the claimant would face away from the truck when descending the steps. This method is not as safe because a person may fall forwards and be unable to grab a handhold. The claimant could not remember falling.
The claimant presented the testimony of Dr. Spitz. Dr. Spitz opined the claimant sustained a subarachnoid hemorrhage caused by a fall. This in turn caused the claimant to develop “communicating hydrocephalus” (fluid accumulation) at the top of the brain. As a result, the claimant required implantation of a shunt to drain the fluid. Dr. Spitz opined that, based on the severity of the claimant’s brain injuries, he fell from a height. Dr. Spitz also opined that climbing out of the truck is a relatively difficult maneuver which requires a greater degree of coordination than walking down ordinary stairs.
Crediting the testimony of Ayers and Dr. Spitz, the ALJ found the claimant “more likely than not” climbed out of the vehicle “facing outwards, tipped forward with no handholds, lost his balance and fell.” The ALJ concluded the fall resulted in compensable brain injuries and consequent need for treatment and disability.
The ALJ also found that even if the fall was precipitated by the claimant’s preexisting brain tumor or diabetes, the “height of the truck and the maneuvering required to get in and out of the vehicle are special hazards.” (Finding of Fact 17). Therefore, the ALJ concluded the claimant’s injuries are compensable.
I.
On review, the respondents contend the evidence is insufficient to support the ALJ’s finding that the fall arose out of the employment. Essentially, the respondents argue that it is just as likely as not that the claimant fell after he reached the ground, and that the fall was precipitated by one of the preexisting conditions. We find no error.
The claimant must prove that the injury was proximately caused by an injury arising out of and in the course of employment. Section 8-41-301(1)(c), C.R.S. 2004; Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). The respondents concede that the fall occurred in the course of the claimant’s employment, but assert that it did not arise out of the employment because the claimant failed to prove the requisite causal connection.
It is certainly true that if a fall at work is precipitated by a preexisting non-industrial condition, the resulting injuries are not compensable unless some special hazard of employment increases the probability of or severity of the injury. See Gates Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo.App. 1985). However, if the fall is precipitated by the circumstances or conditions of the claimant’s employment, the resulting injury is compensable without regard to the existence of a “special hazard” or the claimant’s negligence in contributing to the injury. Section 8-41-101(1)(c), C.R.S. 2004; Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061
(Colo.App. 2002); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
Causation need not be proven with reasonable medical certainty. Rather, the claimant need only prove within reasonable probability that the conditions of employment caused the injury. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990); Morrison v. Industrial Claim Appeals Office, 760 P.2d 654 (Colo.App. 1988). Indeed, circumstantial evidence may be sufficient to establish causation without supporting medical opinion. Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3
(1968). The question of whether the claimant met the burden of proof is one fact for determination by the ALJ. Faulkner v. Industrial Claim Appeals Office, supra.
Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2004. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
The respondents’ assertion notwithstanding, substantial evidence supports the ALJ’s finding that the claimant’s fall was caused not by any preexisting condition, but a combination of the physical requirements for exiting the truck and the claimant’s own negligence. The testimony of Ayers established a reasonable basis for inferring that the claimant had a tendency to climb down by facing away from the truck, a practice which increased the risk of falling because no handholds were available. The ALJ’s inference that the claimant fell forward striking his head, as opposed to falling after he reached the ground, is supported by the facts that the claimant’s head was found pointed away from the truck, and from evidence that the claimant did not close the truck door. Further, the ALJ credited the claimant’s testimony that before the fall, he had no history of “blacking out” or experiencing seizures. Finally, the testimony of Dr. Spitz that the extent of the claimant’s injuries is more likely the result of a fall from a height rather than from a standing position supports the ALJ’s order. Dr. Spitz explained that in his experience and from his study of the literature, injuries of the type exhibited by the claimant are far more common if the patient has fallen from a height rather than fallen from a standing position. (Tr. March 2, 2004, Pp. 28-29).
It is true that the respondents cast some doubt on the testimony of Dr. Spitz, and presented expert testimony of their own tending to show that it was impossible to determine the cause of the claimant’s fall, or the height from which it occurred. However, the relative weight and credibility of the expert testimony was a matter for the ALJ to determine. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002).
It follows from these conclusions that we disagree with the respondents’ assertion that the ALJ “relied on facts not in evidence.” Rather, the ALJ drew a plausible inference from disputed evidence and testimony. Where, as here, two equally plausible inferences may be drawn from the record, we may not substitute our judgment for that of the ALJ concerning which inference is correct. Wilson v. Industrial Claim Appeals Office, supra.
II.
The respondents also dispute the ALJ’s alternative holding that climbing down from the truck cab presented a “special hazard” of employment. The respondents assert that the ALJ misapplied the law because she made no finding concerning how high the claimant was when he fell. We are unpersuaded.
First, resolution of this issue is not necessary. The ALJ found as a matter of fact that the fall was precipitated by the conditions of the claimant’s employment and the claimant’s own action in climbing down while facing away from the truck. Under that scenario, a special hazard need not be proven. H H Warehouse v. Vicory, supra.
In any event, the ALJ correctly applied the law. A “special hazard” of employment is one which increases either the risk of injury or the severity of injury when combined with the preexisting condition which is the direct or precipitating cause of the injury. National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 1259
(Colo.App. 1992) (vehicular travel was a special hazard of employment even though accident was precipitated by preexisting epilepsy); Ramsdell v. Horn, 781 P.2d 150 (Colo.App. 1989) (25-foot scaffold was special hazard to employee whose fall was precipitated by preexisting epilepsy). A special hazard is not “ubiquitous” in the sense that there is an equal likelihood it will be encountered outside of the employment. Gates Rubber Co. v. Industrial Commission, supra.
Here, the testimony of Dr. Spitz and the respondents’ own expert, Dr. Ginsberg, support the ALJ’s conclusion that the physical maneuvers and coordination required to climb down from the truck present special risks beyond those likely to be encountered when climbing or descending ordinary stairs. (Tr. March 2, 2004, Pp. 28, 72). From this evidence, the ALJ plausibly inferred that the actions required to climb down, as well as the height of the cab increased both the likelihood and severity of injury to the claimant. This is particularly true because the claimant’s preexisting conditions made it more likely the claimant would lose his balance and fall. See Ramsdell v. Horn, supra.
The respondents’ argument that the cab of the truck is similar to conditions generally encountered outside of employment is without merit. It is true that persons may encounter steps or obstacles of varying heights outside of employment. However, the test is not whether such obstacles ever present themselves, but whether they are “ubiquitous.” The ALJ found on substantial evidence that climbing four feet to the ground when exiting a vehicle is not a “ubiquitous condition” in the sense that hard floors are ubiquitous. Cf. Gates Rubber Co. v. Industrial Commission, supra.
IT IS THEREFORE ORDERED. that the ALJ’s order dated May 13, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________ David Cain
_______________ Dona Halsey
Clifford Childers, Riverton, WY, Dewanna Schultz, Swift Transportation, Phoenix, AZ, ACE-USA/CIGNA, c/o Paul Chambers, ESIS, Phoenix, AZ, Joseph M. Goldhammer, Esq., Denver, CO, (For Claimant).
Kathleen Mowry Fairbanks, Esq. and Gregory Daniels, Esq., Denver, CO, (For Respondents).