W.C. No. 4-304-126Industrial Claim Appeals Office.
July 29, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ), which determined that the claimant did not sustain a compensable injury, and therefore, denied the claim for temporary disability benefits. We reverse.
It is undisputed that the claimant sustained a non-industrial fracture of his left femur in 1994. Despite several surgical treatments, the claimant was still suffering from a non-union of the distal femur on May 28, 1996, the date of the alleged industrial injury.
The ALJ found that on May 28, the claimant was at work when he arose from a chair and turned so as to twist his left leg. The ALJ stated that this “motion aggravated the non-union of the claimant’s left femur injury.”
Nevertheless, the ALJ concluded that the May 28 incident did not constitute a compensable injury. The ALJ stated that the act of rising from the chair did not constitute “an activity particular to the claimant’s employment and could have happened off the job as well as on the job.” Therefore, the ALJ held that the aggravation of the claimant’s knee injury constituted a “natural and probable consequence of the claimant’s pre-existing condition.”
On appeal, the claimant contends that the ALJ misapplied the law in determining that the May 28 incident is not compensable. The claimant argues that the ALJ found as a matter of fact that the claimant’s employment-related duty of rising from the chair “aggravated” the preexisting condition. The claimant argues that this finding suffices to establish a compensable injury, and that the ALJ improperly focused on whether the act of rising from the chair was unique to the claimant’s employment. We agree with the claimant.
As the claimant argues, our courts have held that the existence of a preexisting disease or infirmity does not disqualify a claimant from receiving compensation “if the employment aggravates, accelerates, or combines with the disease or infirmity to produce the disability for which” benefits are sought. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). Moreover, there is no requirement that a particular activity of employment which aggravates the preexisting condition be unique to the employment, or that it constitute a “special hazard” of the employment. To the contrary, the “special hazard” requirement applies only where the precipitating cause of an injury is a preexisting non-industrial condition which the claimant brings to the workplace. In such cases, the “special hazard” requirement provides the requisite causal connection between the injury and the employment. National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 1259
(Colo.App. 1992); Ramsdell v. Horn, 781 P.2d 150 (Colo.App. 1989). However, the special hazard requirement has no application where it is the conditions of the employment which precipitates the injury. H H Warehouse v. Vicory, supra; see also 1 Larson, Workers’ Compensation Law, § 12.00.
Consistent with this view of the law, we have affirmed an award of benefits to a claimant who was simply “walking down a flight of stairs on the employer’s premises” when he felt a “pop in his back.” Reinhard v. Pikes Peak Broadcasting Co., Inc.,
W.C. No. 4-114-050 (May 20, 1993). In that case, we stated that compensability is not dependent on proof that the injury was the result of a special hazard if the duties of employment are a direct contributing cause of the injury. Moreover, we stated that a medical opinion that the claimant’s injury “could have occurred from similar activities outside the scope of employment did not compel the ALJ to conclude that the claimant’s injury was not compensable.”
Applying these principles here, we hold that the ALJ’s findings of fact compel the conclusion that the claimant sustained a compensable injury. The ALJ explicitly credited the claimant’s testimony concerning the mechanism of the injury, and found that the motion of arising from the chair and twisting “aggravated” the preexisting non-union. Further, the respondents do not deny that the claimant’s action in rising from the chair arose out of his employment because it had a connection to his work-related functions. See Popovich v. Irlando, 811 P.2d 379
(Colo. 1991). Since the employment related function precipitated an aggravation of the preexisting condition, the claim is compensable. The mere fact that the claimant might have sustained the same type of aggravation outside of his employment, or that an employee with a healthy knee might not have sustained the same type of injury, does not preclude compensability. H H Warehouse v. Vicory, supra; 1 Larson, Workers’ Compensation Law, § 12.23 (aggravation exists where preexisting condition is made worse by “strains, impact, inhalations, or other accidents in the course of employment”).
In reaching this result, we recognize the respondents’ reliance on our decision in Horne v. St. Mary-Corwin Hospital,
W.C. No. 4-205-014 (April 14, 1995). In that case, the claimant testified that she sustained a knee injury when arising from a stool to reach for a bottle of saline solution. However, there was conflicting testimony that the claimant merely stood up and her right knee “popped.” The ALJ credited the testimony which conflicted with that of the claimant, and found that there was no causal connection between the employment and the knee injury.
We upheld the ALJ’s order concluding that there was substantial evidence that the claimant suffered from a preexisting knee condition which was the sole cause of the injury. Hence, the injury was in no way related to the employment. We also stated that the stool did not constitute a “special hazard” of employment, and that the evidence supported the finding that the “injury resulted from the act of standing up, which is not an activity particular to the claimant’s employment.” Thus, the employment did not elevate the risk or extent of the injury.
Here, unlike the situation in Horne, the ALJ has found as a matter of fact that the claimant’s action in standing up was a precipitating cause of the aggravation. Therefore, in contrast t Horne, there is no need to determine whether standing up from a chair constitutes a “special hazard” of employment which elevated the risk or the extent of the injury. See also Crass v. Cobe Laboratories, W.C. No. 3-960-662 (October 10, 1991), aff’d., Crass v. Industrial Claim Appeals Office, (Colo.App. No. 91CA1776, July 2, 1992) (not selected for publication) (compensability not warranted where there was no evidence that rising from chair precipitated aggravation of the prior knee strain, or that the chair in some way aggravated or elevated the risk or extent of injury).
Under these circumstances, the ALJ’s order must be reversed. Further, the respondents agreed that, if the claim is compensable, the claimant was temporarily totally disabled commencing July 16, 1996. (Tr. p. 5). Therefore, the claimant is entitled to temporary total disability benefits commencing July 16, 1996, subject to the respondents’ right to claim an offset for unemployment benefits.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 5, 1997, is reversed, and the claimant is entitled to temporary total disability benefits commencing July 16, 1996, subject to the respondents’ right to claim an offset for unemployment benefits, if any.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Dona Halsey
______________________________ Bill Whitacre
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 the petitionupon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date the Order was mailed,pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed July 29, 1997 to the following parties:
Clifford G. Fisher, 1473 W. 103rd Ave., Northglenn, CO 80221
Mountain States Ford Truck, 5025 Vasquez Blvd., Denver, CO 80237-8230
John Egland, Mid-Century Insurance, P.O. Box 378230, Denver, CO 80237
Laurie F. Weisman, Esq. Michael A. Perales, Esq., 999 18th St., Ste. 3100, Denver, CO 80202, (For the Respondents).
William J. Macdonald, Esq., 1890 Gaylord St., Denver, Co 80206, (For the Claimant).
By: ________________________________