W.C. No. 4-459-434Industrial Claim Appeals Office.
August 29, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gallegos (ALJ) which denied her claim for workers’ compensation benefits. The ALJ determined the injury did not arise out of the employment. We affirm.
The ALJ found the claimant was employed four hours per week as an “aqua-aerobics instructor” at the employer’s indoor swimming pool. The claimant was paid only for the hours she actually spent instructing class members. In addition, the claimant was provided free or reduced cost access to the employer’s recreational center. The claimant would frequently arrive early for work, “clock in”, and use the employer’s jacuzzi pool. The ALJ found that use of the jacuzzi pool was not part of the aerobics class or warm up regimen for aquatic instructors, and the claimant was not paid for using the jacuzzi. Rather, the class time itself provided for a warm up.
The claimant suffers from cryoglobulinemia, a medical condition which causes abnormal blood clotting in cool conditions. The claimant uses a jacuzzi or takes a warm bath once or twice per day in order to warm her body and combat this condition.
On March 1, 2000, the claimant arrived for work early and entered the employer’s jacuzzi pool. After the claimant left the jacuzzi pool she fainted and struck her head and back on the recreation center floor. The respondents’ medical expert opined the claimant experienced a “syncopal episode” because the heated water of the jacuzzi caused the claimant’s blood vessels to dilate, and she experienced fainting when she stood and left the pool. The claimant sought compensation for these injuries.
The ALJ concluded the injury did not arise out of the claimant’s employment. In support, the ALJ found that, although the fall occurred on the employer’s premises, this was the “only link between the conditions of employment” and the injury. The ALJ determined the claimant was using the jacuzzi pool to treat her medical condition, and this did not create a nexus between the injury and the conditions of employment. Further, the ALJ concluded that even if the claimant’s fainting episode occurred while she was on the way to obtain equipment for the class, the injuries were not compensable. The ALJ reasoned the fall was initiated by the claimant’s “treatment” of her personal medical condition, and there was no special hazard of employment which contributed to the injury or aggravated its effects.
The claimant filed a petition to review the ALJ’s order which contains only general allegations of error that the ALJ “misapplied the law” and that the order constitutes “an abuse of discretion.” The claimant failed to file a brief in support of the petition to review. Consequently, the effectiveness of our review is limited.
Our scope of review is restricted to determining whether substantial evidence supports the ALJ’s pertinent findings of fact, whether the findings are sufficient to support the order, and whether the ALJ properly applied the law. Section 8-43-301(8), C.R.S. 2000. Substantial evidence is that evidence which would support a reasonable belief in the existence of a fact without regard to conflicting evidence or contrary inferences. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Here, we perceive no misapplication of the law. The claimant was required to prove the injury “arose out of” her employment. Sections 8-41-301(1)(b) (c), C.R.S. 2000. An injury arises out of employment if it is sufficiently related to the conditions and circumstances under which the employee generally performs her job functions such that the activity may reasonably be characterized as an incident of the employment, even if the activity is not a strict obligation of the employment and does not confer a specific benefit on the employer. Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996). The essence of the test is whether the conduct originated in the work-related duties or responsibilities so as to be considered part of the service to the employer in connection with the contract of employment. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991). Ultimately, resolution of this issue is one of fact to be determined by the ALJ based on an examination of the totality of the circumstances. Lori’s Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995).
In Price v. Industrial Claim Appeals Office, supra, the Supreme Court set forth five factors to be considered in determining whether injuries sustained in an “exercise program” arose out of the claimant’s employment. These factors include the following: (1) whether the injury occurred during working hours; (2) whether the injury occurred on the employer’s premises; (3) whether the employer initiated the employee’s exercise program; (4) whether the employer exerted control or direction over the exercise program; and (5) whether the employer stood to benefit from the employee’s exercise program. The Price court emphasized greater weight should be given to the first two factors since time and place are particularly strong indicators of whether an injury arose out of and in the course of employment. These factors have since been applied in deciding whether a claimant’s weight lifting was “recreational” for purposes of determining if the lifting should be excluded from the definition of employment under § 8-40-201(8), C.R.S. 2000. See White v. Industrial Claim Appeals Office, 8 P.3d 621 (Colo.App. 2000).
Here, substantial evidence supports the ALJ’s finding that the injury did not arise out of the claimant’s employment. Although the claimant’s use of the jacuzzi occurred on the employer’s premises, it did not occur while the claimant was teaching a class, warming up for her class, or being paid. Further, the employer did not require the claimant to use the jacuzzi, regulate the claimant’s use of the jacuzzi, or stand to benefit from the claimant’s use of the jacuzzi. Rather, as the ALJ found, the claimant’s use of the jacuzzi was a personal choice for the purpose of treating a preexisting medical condition having nothing to do with the claimant’s employment.
We recognize that at the moment the claimant fainted she may have been preparing to obtain equipment necessary for the class. Thus, the actual injuries may have occurred while the claimant was “in the course of” her employment. However, if the direct cause of an accident is a preexisting condition, the resulting injuries are compensable only if a special hazard of employment contributes to the accident or the injuries sustained by the employee. 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). Thus, if the accident occurs under “ubiquitous conditions” not peculiar to the work environment, the resulting injuries are not compensable. See Gates Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo.App. 1985); Irwin v. Industrial Commission, 695 P.2d 763 (Colo.App. 1984). Level concrete surfaces are considered to be ubiquitous conditions. Gates Rubber v. Industrial Commission, supra.
The ALJ credited the opinion of the respondents’ medical expert that the claimant’s fall was initiated by her predisposition to faint after arising from the warm waters of the jacuzzi. Further, as the ALJ found, the claimant’s injuries resulted from striking her head and back on the floor of the recreation center. Thus, the record amply supports the ALJ’s legal conclusion that the claimant’s injuries were directly precipitated by a preexisting condition, and that no special hazard of employment contributed to or enhanced the severity of the claimant’s injuries. Cf. Hembry v. Industrial Claim Appeals Office, 878 P.2d 114
(Colo.App. 1994).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 16, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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 August 29, 2001 to the following parties:
Diane Harper, P. O. Box 636, Avon, CO 81620
Town of Avon, P. O. Box 975, Avon, CO 81620-0975
Michael J. Steiner, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
Darby Hoggatt, Esq., 530 S. College Ave., #2, Ft. Collins, CO 80524 (For Claimant)
Shane A. Wetmore, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy