W.C. No. 4-546-889, Corrected Order.Industrial Claim Appeals Office.
September 19, 2003.
This Corrected Order is entered pursuant to section 8-43-302(2)(1)(b), C.R.S. 2002, to correct an error in our Final Order dated August 27, 2003.
Our Final Order cited Fisher v. Mountain States Ford Truck Sales,
W.C. No. 4-304-126 (July 29, 1997) for the proposition that a claimant need not prove a special hazard of employment when it is the conditions of employment (rising from a chair in the course of one’s duties) which, in conjunction with the existence of a preexisting condition, precipitates an injury. As noted by the respondents’ recent Notice of Appeal to the Court of Appeals (Court), our Final Order mistakenly failed to recognize that the order in Fisher was set aside and remanded by the Court i Mountain States Ford Truck Sales v. Industrial Claim Appeals Office,
(Colo.App. No. 97CA1439, February 12, 1998), Ruland J., dissenting.
We note that the Court’s unpublished decision in Mountain States Ford Truck Sales is not legal precedent because only published decisions are binding. C.A.R. 35(f). Further, we have considered the majority’s opinion and find it is not persuasive. In our opinion, Judge Ruland’s dissent in the Mountain States decision reflects a correct statement of the applicable principles of law. Thus, we decline to follow the majority’s opinion in Mountain States, or to alter our Final Order based on that decision.
We also note the Court has, since its decision in Mountain States,
issued an unpublished decision which, in our opinion, reflects a correct statement of the applicable law. In Baer v. Rocky Mountain Health,
W.C. No. 4-531-679 (May 17, 1999), we rejected the argument that a claimant was required to prove a “special hazard” where the ALJ found the cold air in the claimant’s office combined with a preexisting condition to trigger vasospasms. The Court affirmed our decision in Rocky Mountain Health v. Industrial Claims Office, (Colo.App. No. 99CA0617, October 21, 1999). The following language from the Court’s opinion is relevant:
Because the cold environment, not claimant’s preexisting condition, was the initiating cause of her injury, she was not required to establish a special hazard of her employment contributed to her injury. See H H Warehouse v. Vicory, 805 P.2d 1167
(Colo.App. 1990). Contrary to employer’s argument, the fact that the preexisting condition of the employee in H H Warehouse was undetected before the injury does not render the rationale of that case inapplicable to the situation presented here.
Nor is a different result warranted under Hembry v. Industrial Claim Appeals Office, 878 P.2d 114
(Colo.App. 1994), relied on by employer. In Hembry, a division of this court held that a claimant must show a special hazard of employment contributing to the injury in cases where the direct cause of the injury was the employee’s preexisting condition. Here, as noted, the ALJ found that it was not claimant’s preexisting condition but, rather, the cold environment that caused her injury. In that event, she was not required to prove a special hazard of her employment in order to establish causation.
Thus, our Final Order in this case must be amended to reflect that in the Mountain States case the Court set aside our order in Fisher. However, for the reasons stated above, we conclude that our Final Order in this case was otherwise correct, and it is incorporated herein as if fully set forth.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 27, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate this 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, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the Petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this order were mailed to the parties at the addresses shown below on September 19, 2003 by A. Pendroy.
Sharon Bastian, 1432 Walnut, #2, Canon City, CO 81212
Canon Lodge Care Center, 905 Harding Ave., Canon City, CO 81212-2147
Steve Humberd, Life Care Centers, Inc., P. O. Box 3480, Cleveland, TN 37320-3480
Tammy Washington, Travelers Insurance, P. O. Box 173762, Denver, CO 80217-3762
Michael W. McDivitt, Esq. and Charlotte Veaux, Esq., 19 E. Cimarron, Colorado Springs, CO 80903 (For Claimant)
Lawrence D. Blackman, Esq., and Lynda S. Newbold, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondent)