IN THE MATTER OF THE CLAIM OF WILLIS “DUANE” LANDES, Claimant, v. MORGAN CORPORATION, Employer, and ZURICH AMERICAN, Insurer, Respondents.

W.C. No. 4-795-135.Industrial Claim Appeals Office.
December 27, 2010.

FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ) dated August 26, 2010, that determined the claimant suffered a compensable injury and ordered the insurer to pay certain medical benefits. We affirm.

The claimant worked for the employer refurbishing large trailers used for over-the-road hauling. The claimant sustained an injury within the time and place constraints of his employment on June 5, 2009. The respondents concede that the claimant’s injury occurred within the course of his employment, but contend that the injury did not arise out of his employment.

On June 5, 2009 the claimant and his coworker were replacing the exterior skin on a trailer. The claimant was working on the inside of the trailer replacing the interior plywood skin. The co-worker was working on the front of the trailer. When the co-worker returned to his toolbox at the back of the trailer, he discovered the claimant lying on the concrete floor, bleeding from his head.

The ALJ found the claimant had suffered a traumatic brain injury (TBI). Because of the TBI the claimant suffers from retrograde amnesia and was unable to recall the circumstances or cause of his accidental fall at work. However, the ALJ found that the claimant had proven that he had proven by a preponderance of the evidence that he sustained an injury arising out of the work-related functions of his employment. The respondents bring this appeal.

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I.
As we understand the respondents’ first argument they contend that the claimant must prove that he sustained an injury arising out of his employment and that the ALJ erred in placing the burden on them to prove a non-occupational cause. We disagree that the ALJ misplaced the burden of proof.

We first note that a work-related injury may be compensable if the injury arose out of and in the course and scope of the injured worker’s employment. § 8-41-301(1)(b). “For an injury to occur `in the course of employment, the claimant must demonstrate that the injury occurred within the time and place limits of his employment and during an activity that had some connection with his work-related functions.” Madden v. Mountain W. Fabricators, 977 P.2d 861, 863 (Colo. 1999). To establish that an injury arose out of an employee’s employment, “the claimant must show a causal connection between the employment and injury such that the injury has its origins in the employee’s work-related functions and is sufficiently related to those functions to be considered part of the employment contract.” Id.

Here, the ALJ, citing § 8-41-301, specifically noted that under the Workers’ Compensation Act of Colorado the claimant shoulders the burden of proving by a preponderance of the evidence that his injury arose out of the course and scope of his employment. After resolving conflicts in the evidence the ALJ found that the claimant had proven by a preponderance of the evidence that he sustained an injury arising out of his employment. We perceive no misplacement by the ALJ of the burden of proof on the respondents.

II.
The respondents next contend that the ALJ erred in finding the claim compensable because the claimant suffered an unexplained fall and as such does not satisfy the “arising out of requirements absent special employment hazards. The respondents contend that the claimant was required to either provide an explanation as to how his fall was caused by an employment related activity or demonstrate the presence of a special hazard of the employment which contributed to the fall and resulting injuries. The respondents argue that the ALJ implicitly found the fall to be unexplained. We are not persuaded that the ALJ committed reversible error.

We acknowledge that there is no presumption that an employee injured at his place of employment sustained an injury arising out of that employment. Rather, a claimant must establish “a direct causal relationship between his employment and his injury.”Finn v. Indus. Comm’n, 165 Colo. 106, 109, 437 P.2d 542, 544 (1968).

When a claimant does not prove the cause of an injury, the claim fails. In Finn,

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the claimant was found unconscious and injured, lying on the floor of his workplace. There was blood running from his ears, his skull was fractured, he had head abrasions and bruises, his eyes were blackened, and his forearms were bruised. Finn, 165 Colo. at 107-08, 437 P.2d at 543. He did not know what had happened to him and there were no witnesses to the circumstances of his unconsciousness or injuries. Although the claimant believed he had been struck by a forklift, the circumstantial evidence was not sufficient to determine what had caused his injuries, and the ALJ found that the “onset” of the injury was triggered by a “mysterious inner body malfunction,” not by a work-related function of his employment. Id. at 108, 437 P.2d at 543. The supreme court affirmed, explaining that the claimant had failed to show how or when he received the fracture and the Industrial Commission did not draw any inference to supply a causal connection.

In contrast, here the ALJ inferred from the circumstantial evidence that the claimant’s fall at work was likely due to an accidental fall while performing work-related functions, whether a trip and fall while walking to obtain a tool or supplies, a fall from the ladder while climbing up into the trailer, a fall while transitioning from the ladder to the trailer, a fall from tripping over the air hose, or a fall from the trailer itself. Given these findings by the ALJ we do not accept the respondents’ assertion that the ALJ implicitly found the fall to be unexplained.

The respondents argue that there was no proof of the presence of a special hazard. On this issue we note that if a pre-existing condition is the precipitating cause of an injury that occurs in the workplace, “the resulting disability is compensable if the conditions or circumstances of employment have contributed to the accident or to the injuries sustained by the employee.” Nat’l Health Labs. v. Industrial Claim Appeals Office, 844 P.2d 1259, 1260-61 (Colo. App. 1992) (emphasis added) (holding that a worker’s epileptic seizure while driving was compensable where the worker was required to operate automobile in the course and scope of her employment because “vehicular travel constitutes a special hazard”). Under this special hazard rule, a worker may be compensated if a pre-existing injury, infirmity, or disease is exacerbated by “the concurrence of a pre-existing weakness and a hazard of employment.” Gates Rubber Co. v. Indus. Comm `n, 705 P.2d 6, 7 (Colo. App. 1985).

Here, the ALJ credited Dr. Chang’s testimony that there was no medically probable evidence showing the claimant’s fall was idiopathic or precipitated by a preexisting condition. In our opinion, given this finding and the ALJ’s causal determination that the claimant’s injuries were likely due to an accidental fall while performing work-related functions, the special hazard rule had no application to the present case. See HH Warehouse v. Vicory, 805 P.2d 1167 (Colo. App. 1990) (proof of a “special hazard” is not required where the injury is precipitated by the employment and not the pre-existing condition).

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III.
The respondents also argue that the ALJ incorrectly focused on the section of Dr. Chang’s testimony concerning the absence of an idiopathic or pre-existing cause for the fall to support a finding of compensability. The respondents argue this implicitly placed the burden on the respondents to prove a non-occupational cause rather than on the claimant to prove an occupational one. We again disagree.

Here, the ALJ inferred from the circumstantial evidence presented by the claimant that his fall at work was more likely due to an accidental fall while performing work-related functions, than precipitated by a pre-existing condition or the result of an idiopathic fall. We do not understand this as placing a burden on the respondents to disprove the case. Nor are we persuaded that the ALJ was compelled to accept other portions of Dr. Chang’s testimony which suggested because of the lack of protective injuries that the claimant’s fall was non-mechanical, meaning one with a medical cause, rather than attributed to a particular activity. We note that the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).

Whether a claimant has met his burden of establishing that his injury is compensable, and not caused by a pre-existing condition, is a factual question to be determined by the ALJ. See HH Warehouse, 805 P.2d at 1170 (“The ALJ has great discretion in determining the facts and deciding ultimate medical issues.”) Therefore, if substantial evidence supports the ALJ’s compensability determination, we are bound by it. See Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251, 252 (Col. App. 1999) (“If substantial evidence supports the ALJ’s conclusion that a claimant’s condition is work-related, that determination may not be disturbed on review.”)

Here, the ALJ expressly determined that claimant’s employment conditions were the precipitating cause of claimant’s injury. In so doing the ALJ credited the testimony of the claimant, the claimant’s co-worker and Dr. Chang. The ALJ made extensive findings regarding the hazards of employment the claimant had to work around while avoiding an injury from falling. These facts are not challenged on review. The ALJ noted that on the day of the fall the claimant was in his usual state of health with no apparent problem performing his work activities. The ALJ made reasonable inferences from the evidence that whether a trip and fall while walking to obtain a tool or supplies, a fall from the ladder while climbing up into the trailer, a fall while transitioning from the ladder into the trailer, a fall from tripping over the air hose, or a fall from the trailer itself,

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the fall at work was likely due to an accidental fall while performing work-related functions. Because this determination is supported by substantial evidence in the record we must uphold the ALJ’s determination. Section 8-43-301(8).

IT IS THEREFORE ORDERED that the ALJ’s order dated August 26, 2010 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Thomas Schrant

Examiner Kriksciun dissents: In my view the ALJ’s dispositive factual findings are not supported by substantial evidence and I would reverse the order. The claimant’s burden was not to show that he did not suffer a stroke or that the cause of his injury was not otherwise idiopathic. Nor was it to show that his injury occurred “while performing” some work-related duty, as found by the ALJ. Rather, the claimant’s burden was different from these. It was to show that his injury arose out of the employment. Section 8-41-301(1)(b), C.R.S. That showing requires that the injury be caused by some work-related function. There must be a direct causal relationship between the employment and the injury. Ramsdell v, Horn, 781 P.2d 150 (Colo. App. 1989). Here, there is no evidence in the record from which that specific causal connection can reasonably be inferred. The broadest inference that can be drawn from Dr. Chang’s testimony is that the claimant did not suffer a stroke or some other event caused by a pre-existing condition. However, contrary to the ALJ’s reasoning, that inference does not support the finding that there was a direct causal connection between the claimant’s work-related functions and the injury. Rather, that latter finding requires some further evidentiary support, which is absent from this record. Essentially, the ALJ found that the claimant performed certain job duties in the course of his employment and the ALJ then speculated that the claimant’s injury occurred “while performing” one of those. In this regard, the ALJ speculated that the claimant’s injury occurred while he was actually working, “whether a trip and fall while walking to obtain a tool or supplies, a fall from the ladder

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while climbing up into the trailer, a fall while transitioning from the ladder into the trailer, a fall from tripping over the air hose, or a fall from the trailer itself” Findings of Fact, Conclusions of Law and Order at 4, ¶ 10. However, it is also possible that the claimant’s injury occurred because the claimant simply tripped over his own feet, or because he turned in an awkward manner and his knee gave way, or he simply fell with no obvious mechanism causing it and, further, any of these events might have occurred while the claimant was taking a short break from work. In response to the objection that these proposed causes of the injury are speculative, of course, I concede that point. However, so was the ALJ’s factual finding that the claimant’s injury was directly caused by some work-related function, along with his enumeration of possible ways in which the claimant might have injured himself. In my view the record compels the conclusion that this fall was unexplained and therefore not compensable. See Finn v. Industrial Commission, supra; Rice v. Dayton Hudson Corporation, W.C. No. 4-386-678 (July 29, 1999). For these reasons, I decline to join the majority order and would reverse the ALJ’s order.

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WILLIS “DUANE” LANDES, AURORA, CO, (Claimant).

MORGAN CORPORATION, Attn: REGIONAL HUMAN RESOURCES MANAGER, JANESVILLE, WI, (Employer).

ZURICH AMERICAN, Attn: DAVE REED, C/O: GALLAGHER BASSETT SERVICES, INC., ENGLEWOOD, CO, (Insurer).

MOSELEY, BUSSER APPLETON, Attn: KERRY L. SULLIVAN, EQ., DENVER, CO, (For Claimant).

SULLIVAN, SULLIVAN McGUIRE, PC, Attn: SCOTT M. BUSSER, ESQ., DENVER, CO, (For Respondents).

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