W.C. No. 4-386-678Industrial Claim Appeals Office.
July 29, 1999.
FINAL ORDER
The respondent seeks review of a final order of Administrative Law Judge Erickson (ALJ) and which determined the claimant sustained a compensable fall and awarded medical and temporary disability benefits. The respondent argues the undisputed evidence establishes the claimant’s “unexplained fall” did not arise out of her employment. We reverse.
The claimant testified that at the end of her shift she walked to the employer’s time clock to punch out. She stated that she got very close to the clock “within perhaps four steps when I felt myself starting to fall.” The claimant also testified that she didn’t know what caused her to fall, although she “may have slipped” or “got my feet tangled up in [a] shopping cart.” (Tr. pp. 13, 15). The claimant injured her shoulder in the fall.
The ALJ found as a matter of fact the claimant “was unable to provide an explanation for her fall,” although she did not “lose consciousness” during the fall. (Finding of Fact 3). Under these circumstances, the ALJ determined the claimant’s injury occurred “in the course of” her employment because it was connected with the job-related function of clocking out.
Moreover, the ALJ concluded the claimant’s injury “arose out of” her employment. In support of this conclusion, the ALJ found the claimant did not have a seizure or suffer from any other “idiopathic condition that caused her fall.” Therefore, the ALJ reasoned the fall would not have occurred if the claimant “had not been engaged upon an employment duty at the time.” The ALJ determined that these circumstances establish the claimant’s injury was “sufficiently related to her work to be considered part of” her service to the employer.
On review, the respondent contends the ALJ erred as a matter of fact and law in determining the claimant’s injury arose out of her employment. The respondent argues the undisputed facts present a “classic unexplained fall case” and the claimant failed to establish any causal relationship between her employment and the injury. Moreover, the respondent argues the ALJ misapplied the positional risk doctrine to the facts of this case. We agree with the respondent.
Initially, we note that we may set aside an ALJ’s order if the findings of fact do not support the order. Section 8-43-301(8), C.R.S. 1998. If the facts are undisputed and only one inference possible, the issue is one of law which we may determine independent of the ALJ’s conclusion. Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993). We conclude that this is such a case.
Section 8-41-301(1)(c), C.R.S. 1998, establishes as conditions of recovery that the claimant’s injury be one “arising out of and in the course of the employee’s employment.” The “arising out of” and “course of” employment criteria represent distinct elements of compensability. The “course of employment” requirement refers to the time, place and circumstances of the injury. The “arising out of” criterion requires the claimant to establish a causal connection between the employment and the injury such that the injury has its origins in the claimant’s work-related functions and is sufficiently related thereto to be considered part of the employment contract. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999).
Here, it is undisputed that the claimant’s fall occurred “in the course of” her employment. The question presented is whether the evidence establishes a causal relationship between the claimant’s employment and the fall sufficient to support the ALJ’s conclusion that the fall arose out of employment.
Colorado law clearly holds that where the claimant suffers from a preexisting idiopathic condition or abnormality which initiates a fall at work the resulting injuries are not compensable unless the conditions of employment contribute to the accident or the extent of the injuries sustained. 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). In order for there to be a sufficient employment connection for such an injury to arise out of employment the claimant must prove the employment created a “special hazard.” Ubiquitous conditions, such as concrete floors, do not qualify as special hazards. Gates Rubber v. Industrial Commission, 705 P.2d 6 (Colo.App. 1985).
We agree with the claimant that the injury in this case does not fall under the class of cases involving preexisting idiopathic conditions. To the contrary, the ALJ found no evidence of such a condition, or that it caused the fall. Moreover, the ALJ expressly found that the claimant was unable to offer any
explanation for the fall.
The question then becomes whether the ALJ correctly ruled that a truly “unexplained fall” may be deemed compensable simply because it occurred in the course of employment. See Irwin v. Industrial Commission, 695 P.2d 763 (Colo.App. 1984) (ruling the claimant’s fall was not compensable where he had a history of a blacking out, but declining to consider the question of “whether a truly unexplained fall, with no exigent circumstances present, arises out of employment”). We conclude that Colorado law, as presently constituted, does not support the ALJ’s finding of a compensable injury.
A number of jurisdictions hold, as the ALJ did, that where a claimant’s fall is truly unexplained the court may apply a “positional risk” analysis and find the resulting injury compensable. In these jurisdictions the courts reason that “but-for” the claimant’s employment he would not have been injured. 1 Larson’s Workers’ Compensation Law, § 7.04 [1] [a]. However, a substantial minority of jurisdictions reject the “but-for” positional risk analysis and require the claimant to demonstrate a causal relationship between the fall and the conditions or circumstances of employment. 1 Larson Workers’ Compensation Law, § 7.04 [1] [c]. Significantly, 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.” 1 Larson Workers’ Compensation Law, Digest § 7.04 at D7-11.
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 referee 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.” The claimant appealed arguing that a “presumption exists that an injury arises out of the employment where there is an unexplained injury which occurred during the course of the employment.” 437 P.2d at 543. However, the Finn court ruled that no such presumption exists, and the burden is on the claimant 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 and in course 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 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, 759 P.2d 17 (Colo. 1988).
Here, the ALJ found the claimant is not able to explain why she fell at the time she fell. The ALJ found no persuasive evidence that the circumstances of the claimant’s employment played any causative role in the injury, nor any evidence that a preexisting idiopathic condition initiated the fall. Neither does the record contain any evidence that the claimant’s fall was initiated by a “neutral force,” such as a lightning bolt or stray bullet, which would have injured anyone present at the same time and place. Under these circumstances, and in the absence of further illumination from the courts, we conclude that Finn v. Industrial Commission, supra, places the risk the of inability to establish causation on the claimant. The mere fact an injury occurs at work does not establish that it was caused by work-related factors.
It follows that we agree with the respondent that this case involves a truly “unexplained fall.” Since the claimant failed to establish that her employment played any causative role in the fall, or that the circumstances of her employment elevated the risk of the fall or the extent of her injuries, the evidence is insufficient to support the ALJ’s conclusion that the injury arose out of employment. The mere fact that the claimant did not lose consciousness when she fell does not establish that there was an employment-related cause for the fall, or that as yet unidentified personal factors must be excluded as the cause of the fall. Consequently, the ALJ’s order and award of benefits must be reversed.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 25, 1999, is reversed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the 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, 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed July 29, 1999 the following parties:
Sheila Rice, 10421 Gilpin St., Northglenn, CO 80233
Dayton Hudson Corp./Target Stores, 4301 E. Virginia Ave., Denver, CO 80217-3762
Tameria I. Stukes, Constitution State Service Co., P.O. Box 173762, Denver, CO 80217-3762
David M. Pantos, Esq., 1732 Race St., Denver, CO 80202 (For Claimant)
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondent)
BY: A. Pendroy