W.C. No. 4-254-809Industrial Claim Appeals Office.
June 27, 1996
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Martinez (ALJ) which awarded temporary disability benefits as a result of a shoulder injury. We conclude that the ALJ erred in finding the claim compensable, and therefore, reverse the ALJ’s award.
The ALJ found that the claimant reported to her place of employment for the purpose of picking up her paycheck. The claimant obtained the paycheck then walked to the front of the store where she began conversing with a fellow employee.
While the claimant was talking with the co-employee, she “suffered a syncopal episode which was not related to her employment while at the store.” As the claimant began to fall, the co-employee “grabbed the claimant’s left arm in an attempt to break the claimant’s fall.” The ALJ found that the co-employee’s intervention dislocated and fractured the claimant’s shoulder, and that this in turn caused the disability for which benefits were awarded.
The ALJ concluded that, under these circumstances, the claim was compensable. He reasoned that because the claimant was on the employer’s premises to pick up her paycheck, and because the co-employee’s action in grabbing the claimant “actually caused” the shoulder injury, the claim is compensable.
On review, the respondent contends that the ALJ erred in determining that picking up the paycheck created a sufficient causal “nexus” between the claimant’s employment and the injury. The respondents also argue that the facts fall under that line of cases denying compensability where a claimant’s pre-existing idiopathic condition causes the claimant to fall and suffer injuries for which benefits are sought. We agree with the latter argument, and therefore, do not address the first.
It is generally held that where a claimant’s pre-existing idiopathic disease or condition causes the claimant to suffer an injury at work, the injury is not compensable. See Gates Rubber v. Industrial Commission, 705 P.2d 6 (Colo.App. 1985). The rationale for this line of cases is that the risks of such pre-existing conditions are personal to the claimant, and therefore, do not “arise out of” the employment. See 1 Larson, Workmen’s Compensation Law, § 12.00.
However, injuries which are partially the result of a pre-existing condition are compensable if the circumstances of employment combine with the condition so as produce the accident or injuries. See National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 1259 (Colo.App. 1992). In order to satisfy this test it must be established that the employment-related factor was peculiar to the work environment, and not a “ubiquitous condition” generally encountered. Hembry v. Industrial Claim Appeals Office, 878 P.2d 114 (Colo.App. 1994); Ramsdell v. Horn, 781 P.2d 150 (Colo.App. 1989).
Here, the ALJ found that the claimant’s injury was precipitated by a “syncopal episode” which was idiopathic in origin. Thus, the claimant’s injury was initiated a by condition personal to her, and she was required to show a “special hazard” of employment in order to establish the requisite causal relationship between the employment and the injury.
We agree with the respondent that the co-employee’s intervention cannot be classified as a “special hazard” of employment with contributed to or elevated the risk of injury. In our view, the presence of rescuers who attempt to break the fall of a person experiencing a syncopal episode is a “ubiquitous” condition not distinctly associated with the claimant’s employment. The mere fact that the intervention of the co-employee “caused” the claimant’s injury does not mean that the risk of such an injury was any greater at the place of employment than it was in the world at large. In fact, the action of the co-employee may be viewed as reducing, rather than elevating the risks of the syncopal episode since the claimant might well have suffered greater injury if she had been allowed to fall to the floor without aid. See generally, 1 Larson Workmen’s Compensation Law, § 12.14(c). Put another way, we view the intervention of the co-employee as a “ubiquitous” condition analogous to a level floor, rather than a dangerous instrumentality such as a scaffolding or automobile Compare Gates Rubber v. Industrial Commission, supra,
and Ramsdell v. Horn, supra.
In view of our conclusion, the ALJ’s award of benefits must be reversed. Consequently, we need not consider whether the ALJ properly found that the claimant’s decision to pick up her paycheck created a sufficient “nexus” between the employment and the injury.
IT IS THEREFORE ORDERED that the ALJ’s order, dated February 7, 1996, is reversed, and the claim for benefits is denied and dismissed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of thepetition upon the Industrial Claim Appeals Office and all otherparties, within twenty (20) days after the date the Order wasmailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995Cum. Supp.).
Copies of this decision were mailed June 27, 1996 to the following parties:
Shirley M. Marcil, 2915 Orchard Ave., #G22, Grand Junction, CO 81504
K Mart, 3100 W. Big Beaver Road, Troy, MI 48084-3004
K Mart Corp., % McMillan Claims Services, 2785 N. Speer Blvd., Denver, CO 80211
Frank Cavanaugh, Esq. John Fitzsimons, Esq., 3464 S. Willow St., Denver, CO 80231-4566 (For the Respondent)
Connie Ward, Esq., P.O. Box 4848, Grand Junction, CO 81502 (For the Claimant)
By: ______________________