W.C. No. 4-573-717.Industrial Claim Appeals Office.
February 7, 2005.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which determined the claimant failed to prove a compensable injury and, therefore, denied and dismissed the claim for workers’ compensation benefits. We affirm.
The claimant alleged he suffered a compensable aggravation of his pre-existing back condition on January 30, 2003, while employed as a painter’s assistant. The claimant testified the injury occurred as he walked up a flight of stairs at the job site to look for drop cloths. He stated he then experienced the onset of severe back pain. He added that just before walking up the stairs he was pouring lacquer from a five-gallon container into one-gallon containers. The claimant did not mention lifting a five-gallon container to the treating physicians.
The ALJ found the claimant suffered prior injuries as a passenger in a 1996 motor vehicle accident where the driver was the killed and that the claimant had ongoing low back after that accident. In October 2001 the claimant had a second motor vehicle accident which the claimant described as minor.
Dr. Lockwood opined it was not medically probably the claimant’s low back condition was causally related to walking up the stairs on January 30. Instead, Dr. Lockwood testified that the claimant’s condition was likely attributable to the 1996 motor vehicle accident, the claimant’s age, obesity, smoking and other activities. The ALJ found Dr. Lockwood’s opinions credible and persuasive.
The ALJ also found the claimant’s injury was precipitated by the pre-existing back condition and the stairs did not present a special hazard. Therefore, the ALJ determined the claimant failed to prove his low back condition was caused by the employment.
The claimant’s Petition to Review contains general allegations of error. See § 8-43-301(8), C.R.S. 2004, and the claimant has not filed a brief in support of the Petition to Review. Consequently the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
An injury is compensable if it “arises out of” and in the course of employment. Section 8-41-301(1)(b), C.R.S. 2004; Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996). An injury “arises out of” employment when the origins of the injury are sufficiently related to the conditions and circumstances under which the employee usually performs his job to be considered part of the employee’s services to the employer. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Where the precipitating cause of the injury is a preexisting non-industrial condition which the claimant brings to the workplace, the resulting disability is not compensable unless “special hazards” of the employment contributed to the injury National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 763 (Colo.App. 1992). Under this test an injury resulting from an “ubiquitous” condition which the claimant would equally encounter off the job is not compensable. Gates v. Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo.App. 1985) (level concrete surface upon which employee struck head following seizure did not constitute special risk of employment); Hembry v. Industrial Claim Appeals Office, 878 P. 2d 114 (Colo.App. 1994) (benefits denied for injuries occurring while arising from a chair, where there was nothing unusual or defective about the chair).
Under § 8-43-301(8), we are precluded from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
We have reviewed the record. The ALJ’s findings are supported by substantial, albeit conflicting evidence. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993). Consequently, the findings must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002).
Further the claimant did not attempt to show that the number and composition of the steps presented a unique risk to him than was not generally present. See Gaskins v. Golden Automotive Group, LLC, W.C. No. 4-374-591 (August 6, 1999). Therefore, we cannot say the record compelled the ALJ to find the claimant’s condition was caused by a special hazard of the employment.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 24, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Steve C. Andrews, 836 Mansfield, Fort Collins, CO, Robert Smith Construction, Inc., Fort Collins, CO, Legal Department, Pinnacol Assurance — Interagency Mail Bob L. Ring, Esq., Fort Collins, CO, (For Claimant).
Douglas P. Ruegsegger, Esq. and Michele Stark Carey, Esq., Denver, CO, (For Respondents).