W.C. No. 4-432-838Industrial Claim Appeals Office.
November 30, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Erickson (ALJ) which determined the claimant failed to prove she suffered a left knee injury arising out of her employment, and therefore denied her claim for workers’ compensation benefits. We affirm.
The claimant was employed as a facility maintenance worker. She injured her left knee in November 1998 while ascending a flight of stairs on the employer’s premises. At the time of the injury the claimant was on her way to the restroom and then intended to proceed to an employee meeting. She testified that she felt a “crack” or “pop” as she bent her leg, and immediately experienced pain in her left knee. (Tr. p. 9).
The ALJ found it was undisputed the claimant was in the course of her employment at the time of the injury. However, the ALJ was not persuaded the injury arose out of the employment. Specifically, he found the claimant failed to prove the injury was caused by a “special hazard” of the employment. Therefore, the ALJ determined the claimant failed to prove a compensable injury, and denied her claim for benefits.
On appeal, the claimant concedes she had osteoarthritis which pre-dated the injury. However, she contends the pre- existing condition was asymptomatic at the time of the injury. Accordingly, she argues the ALJ erred in requiring her to prove a “special hazard” of the employment. Instead, the claimant contends the ALJ should have applied a positional risk analysis because “but-for” the employment, she would not have been injured. Alternatively, the claimant contends the injury “arose out of the employment” because it is governed by the “personal comfort doctrine.” We reject these arguments.
An injury is compensable if it “arises out of” and “in the course of” employment. Section 8-41-301 C.R.S. 2000; Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996). The “course of employment” requirement is satisfied when it is shown that the injury occurred within the time and place limits of the employment relationship. The “personal comfort doctrine” provides that the claimant remains in the course of employment while taking action to satisfy her “personal comfort” because such action is necessary to maintain the employee’s health, and is indirectly conducive to the employer’s purposes. See Ocean Accident Guaranty Corp. v. Pallaro, 66 Colo. 190, 180 P. 95 (1919). Consequently, the “personal comfort doctrine” provides that injuries which occur while eating, washing, toileting, seeking fresh air, or getting a drink of water are considered to occur in the course of employment. 2 Larson’s Workers’ Compensation Law § 21.05 (1999).
However, the “arising out of” requirement is narrower than the course of employment, and is a test of causation which requires that the injury have its origin in an employee’s work-related functions and be sufficiently related thereto so as to be considered part of the employee’s service to the employer. It follows that an injury which occurs within the time and place limits of the employment under the “personal comfort doctrine” is not determinative of whether the injury “arose out of” the employment. As the ALJ noted, it is undisputed that the claimant’s injury here occurred in the course of her employment.
The determination of whether there is a sufficient “nexus” or causal relationship between the claimant’s employment and the injury is one of fact which the ALJ must determine based on the totality of the circumstances. In Re Question Submitted by the United States Court of Appeals, 759 P.2d 17 (Colo. 1988) Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861
(Colo.App. 1996). We must uphold the ALJ’s determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. Under this standard, we are bound by the ALJ’s plausible inferences from the record. See Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998).
Under a positional risk analysis, an injury is compensable if “but for” the obligations of the employment, the claimant would not have been in the particular place at the particular time when he was injured by a “neutral force,” meaning a force which was neither personal to the claimant nor distinctly associated with the employment. Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991); In re Question Submitted by the United States Court of Appeals for the Tenth Circuit, supra. Many jurisdictions apply the positional risk doctrine where a claimant’s fall is truly unexplained. Larson § 7.04 [1] [a]. However, a substantial minority of jurisdictions reject the “but-for” positional risk analysis for unexplained falls and require the claimant to demonstrate a causal relationship between the fall and the conditions or circumstances of employment. Larson, § 7.04. Professor Larson’s treatise cites Finn v. Industrial Commission, 165 Colo. 106, 437 P.2d 542 (1968), as evidence that Colorado adheres to the “minority rule.” Larson Digest § 7.04.
In Finn v. Industrial Commission, supra, the claimant was found lying on the floor at his place of employment suffering from a fractured skull and numerous bruises and abrasions. The claimant “surmised that he had been struck by a forklift,” but he did not know what happened and could not produce evidence of what occurred. The hearing officer concluded the claimant failed to prove his injuries arose out of employment, and expressed his “belief” the claimant’s injuries were triggered by a “mysterious inner-body malfunction.” On appeal, the court rejected the claimant’s contention that an injury arises out of the employment “where there is an unexplained injury which occurred during the course of the employment,” and concluded the claimant bore the burden to prove a causal relationship between his employment and his injury. See also Industrial Commission v. London Lancashire Indemnity Co., 135 Colo. 372, 311 P.2d 705 (1957) (mere fact that the decedent fell to his death on the employer’s premises did not give rise to presumption that the fall arose out of employment).
Since the Supreme Court’s decision in Finn, the positional risk doctrine has undergone clarification and expansion. However, in most formulations of the doctrine, the courts require proof that but for the obligations of employment the claimant would not have been in the particular place at the particular time when he was injured by a “neutral force,” meaning a force which was neither personal to the claimant or distinctly associated with the employment. Younger v. City and County of Denver, supra; In re Question Submitted by the United States Court of Appeals for the Tenth Circuit, supra; Larson § 3.05 (1999). Therefore, the ALJ correctly determined that there is no presumption in Colorado that an injury “arises out of” the employment. See Rice v. Dayton, W.C. No. 4-386-678 (July 29, 1999).
Here, the claimant was unable to explain why the injury occurred, nor did the claimant allege any “neutral force” caused the injury. Under these circumstances, the ALJ reasonably inferred the claimant failed to prove that “but for” the employment she would not have been injured.
Moreover, where the precipitating cause of the injury is a pre-existing condition which the claimant brings to the workplace, the injury is not compensable unless a “special hazard” of the employment combines with the pre-existing condition to cause the injury. See National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 763 (Colo.App. 1992); Gaskins v. Golden Automotive Group, L.L.C., W.C. No. 4-374-591 (August 6, 1999) (injury when pre-existing condition caused the claimant to stumble on concrete stairs not compensable because stairs were ubiquitous condition). This principle is known as the “special hazard” rule Ramsdell v. Horn, 781 P.2d 150(Colo.App. 1989). The rationale for this rule is that unless a special hazard of employment increases the risk or extent of injury, an injury due to the claimant’s pre-existing condition does not bear sufficient causal relationship to the employment to “arise out of” the employment Gates Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo.App. 1985). For example, in Gates Rubber Co. v. Industrial Commission supra, the court held that a claimant who was injured by falling onto a concrete floor after an idiopathic seizure did not suffer a compensable injury in the absence of proof that the concrete surface was a special risk of the employment. See also Horne v. St. Mary-Corwin Hospital, W.C. No. 4-205-014 (April 14, 1995) (claimant who suffered knee injury when her knee “buckled” while standing up from a stool not compensable where stool was not a “special hazard”).
As argued by the claimant, proof of a “special hazard” is not required where the injury is precipitated by the employment and not the pre-existing condition. See H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). Here, however, the ALJ implicitly rejected the claimant’s contention that her osteoarthritis was asymptomatic at the time of the injury. See Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966) (ALJ is not required to explicitly discuss defenses or theories he rejected). The ALJ’s determination is supported by substantial evidence in Dr. Tello’s testimony, and is buttressed by the claimant’s admission she had bilateral knee pain before the injury which caused her to miss time from work. (Tr. pp. 23, 24). Thus, the ALJ did not err in requiring the claimant to prove a special employment hazard.
The claimant did not recall slipping or tripping on anything, and did not allege there was something sticking out of the stairs that caused the knee pain. (Tr. p. 26). In fact, the claimant testified the stairs were normal with no unusual quality. (Tr. p. 27). Based upon this evidence the ALJ reasonably inferred that the stairs constituted a ubiquitous condition, not a “special hazard.”
The claimant’s remaining arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 22, 2000, 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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2000. 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 decision were mailed November 30, 2000 to the following parties:
Carolina Gutierrez, 803 S. Tyler Ave., Loveland, CO 80537
Wal-Mart Stores, Inc., 7504 E. Crossroads Blvd., Loveland, CO 80538-8958
American Home Assurance Co., Claims Management, Inc., P. O. Box 3708, Bartlesville, OK 74006-3708
Shawn P. Langley, Esq., 1115 11th Ave., Greeley, CO 80631 (For Claimant)
Richard A. Bovarnick, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy