W.C. No. 4-387-363Industrial Claim Appeals Office.
October 7, 1999
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which determined the claimant suffered a back injury arising out of and in the course of her employment, and therefore, awarded benefits. We affirm.
On June 15, 1998, the claimant injured her back while on her job as a nursing assistant. The claimant bent over to retie a shoelace while standing at the nursing station to get a report. As she bent over, her back popped and she was unable to stand up. She was subsequently transported to the hospital where she was diagnosed with a lumbar back strain.
Crediting the claimant’s testimony that her shoelace became untied when a resident she was assisting stepped on it, the ALJ found the injury arose out of the employment. (Tr. pp. 5, 6). The ALJ also relied on testimony from the claimant and the employer concerning the importance of securely tied shoelaces for safe performance of the job. Consequently, the ALJ ordered the respondents to pay the authorized medical expenses for treatment of the back strain.
On review, the respondents contend the ALJ erred in finding a compensable injury because the claimant failed to prove that the injury arose out of any work-related function. In support, the respondents contend that bending over to tie a shoelace is a personal activity which cannot be related to employment duties. Under the circumstances here, we disagree.
A compensable injury is one which “arises out of” and “in the course of” the employment. Section 8-41-301 C.R.S. 1999; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). An injury “arises out of” of work-related activity if it is “sufficiently interrelated to the conditions and the circumstances under which the employee usually performs her job functions that the activity may reasonably be characterized as an incident of employment, even though the activity itself is not a strict obligation of employment and does not confer a strict benefit on the employer.” City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995); Schwindt v. Red Roof Delivery Inc., W.C. No. 4-009-534 (September 14, 1992) (fall down stairs at home upon completion of administrative work was compensable where work demands made it necessary for claimant to work at home).
Furthermore, a compensable injury may be an unexpected, unusual, or undesigned occurrence or effect of an employee’s normal work activities. Section 8-40-201(1), C.R.S. 1999 Industrial Commission v. Cutshell 164 Colo. 240, 433 P.2d 765
(1967). For example, in Reinhard v. Pikes Peak Broadcasting Co. Inc., W.C. No. 4-114-050 (May 20, 1993), the claimant was injured while walking down a flight of stairs at the employer’s premises. Because the evidence indicated the injury occurred while the claimant was going to a room where his work assignments were posted, we upheld an ALJ’s finding that the injury had its origin in a distinctly work-related activity. Compare Esquibel v. Crouse Rogers Inc., W.C. No. 4-125-118 (June 8, 1993) (walking in course of employment not a work-related activity, so injury not compensable when claimant suddenly clutched his knee in pain).
Contrary to the respondents’ argument, activities related to putting on a uniform, or altering and repairing soiled clothing at work are incidental to work. See A. Larson, Workers Compensation Law, Ch. 21, § 21.06(5). Consequently, we previously upheld an ALJ’s finding of a compensable back injury which occurred when the claimant bent over to tie his uniform shoes Bond v. Vail Marriott, W.C. No. 3-101-522 (February 9, 1993).
Here, the claimant’s testimony which the ALJ expressly credited contains substantial evidence to support the ALJ’s finding that the claimant established a work-related cause for the activity of bending over to tie her shoelace. Therefore, the ALJ’s finding must be upheld. Section 8-43-301(8), C.R.S. 1999 Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998); City of Aurora v. Industrial Commission, 710 P.2d 1122 (Colo.App. 1985). Further, the ALJ’s findings support the conclusion the claimant’s injury arose out of an activity incidental to the claimant’s employment.
However, the respondents contend that the claimant’s “self-serving” testimony that a resident caused her shoelace to become untied is not “competent” evidence because the claimant made this statement for the first time at the hearing. Again we disagree.
We may not interfere with the ALJ’s credibility determinations unless the testimony the ALJ credited is rebutted by such hard, certain evidence that the ALJ would err as a matter of law in crediting the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). The respondents’ arguments notwithstanding, we perceive no basis to disturb the ALJ’s credibility determinations.
The claimant stated that she did not report the cause of the untied lace on her written accident report because she was told the report had to be filled out quickly. (Tr. p. 23). The employer’s witness, who observed the accident, admitted she never asked the claimant how her shoelace became untied. Further, she did not dispute the claimant’s testimony that her shoelace became untied while assisting a resident. (Tr. p. 33). Moreover, the fact that the claimant did not tell the treating physician what prompted her need to retie her shoelace does not compel a conclusion that the explanation was a fabrication. The ALJ could reasonably infer that the cause of the claimant’s untied shoelace was not pertinent to the history of the injury or the receipt of medical treatment.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 29, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
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, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed October 7, 1999 to the following parties:
Robin Chapa, 5100 Leetsdale Dr., #126, Denver, CO 80246
Mountain Meadows Nursing Center, Attn: Candace Selk Cooper, NHA, 2277 East Dr., Monte Vista, CO 81101
Industrial Indemnity, Maria Kuhnhausen, Fremont Compensation Insurance Co., 1471 Shoreline Dr., #200, Boise, ID 83702
Gordon J. Heuser, Esq., 625 N. Cascade Ave., #300, Colorado Springs, CO 80903 (For Claimant)
William A. Richardson, Esq., 1430 Larimer Square, #400, Denver, CO 80202 (For Respondents)
BY: A. Pendroy