W.C. No. 4-724-391.Industrial Claim Appeals Office.
May 30, 2008.
ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated December 31, 2007, that denied his claim for disability and medical benefits. We reverse and remand the matter for such further proceedings as are necessary to determine the benefits and compensation, if any, to which the claimant is entitled.
The ALJ’s findings of fact are summarized as follows. The claimant worked as an electrician. He injured his left knee in 2000 while working for a previous employer when he fell and fractured his patella. The claimant underwent surgery and had screws installed in his left knee. On May 9, 2007, the claimant bent down while inspecting an outlet box while working for the respondent employer. He heard a “pop” in his left knee and experienced severe left knee pain. The claimant’s patella had broken in half. Dr. Watkins determined that the claimant had sustained a hardware failure in his left patella. A CT scan showed a non-union of the claimant’s 2000 patellar fracture. Dr. Zinis testified that the claimant had a non-union of his left patella due to the incident in 2000. He further stated that the incident on May 9, 2007, fractured the claimant’s left patella at its non-union and aggravated his preexisting left knee condition.
The ALJ stated that the claimant “simply bent down to inspect an outlet box and his left knee `popped.'” The ALJ also noted that the claimant apparently did not fall, twist, or carry anything at the time of his injury. The ALJ therefore determined that the claimant’s preexisting knee condition was the “precipitating event” of his last injury. Thus, the ALJ found that the claimant failed to prove that he sustained a compensable injury. Instead, the ALJ found that the claimant did not encounter a special hazard at
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work and denied the claim for benefits. We conclude that the ALJ erred in applying the special hazard doctrine to his findings and therefore we reverse his conclusion that the claimant did not sustain a compensable injury. Therefore, we remand this matter for a determination of the compensation and benefits payable to the claimant.
As we read the ALJ’s order he chiefly relied upon the absence of a “special hazard” in concluding that the claimant did not sustain a compensable injury. However, the ALJ also apparently found that the claimant “aggravated” his preexisting knee condition while bending down to inspect an electrical fixture. The ALJ stated in his order that:
Claimant suffered from a pre-existing condition to his left patella as a result of an August 30, 2000 industrial injury. Dr. Zinis credibly explained that Claimant suffered from a non-union, or only partial healing, of his prior industrial injury. Claimant fractured his left patella in the location of the non-union and aggravated his preexisting left knee condition. Although Claimant’s aggravation occurred while working for Employer, he did not encounter a special hazard of employment that combined with his pre-existing condition to contribute to his injury. On May 9, 2007 Claimant simply bent down to inspect an outlet box and his left knee “popped.”
Findings of Fact, Conclusions of Law, and Order (Order) at 5, ¶ 7. As we read the order, the ALJ’s findings that the claimant aggravated his preexisting condition while performing an action required by his job compels the conclusion that he sustained a compensable injury. Because the ALJ found that the work-related activity of bending over to inspect an electrical fixture aggravated the claimant’s preexisting knee condition it was unnecessary for the ALJ to analyze whether some “special hazard” of the employment worked upon the preexisting condition in order to “precipitate” the injury. In our view, it is enough to compel the conclusion that the injury was compensable that the preexisting condition was aggravated by a work-related activity. Since the ALJ entered factual findings to that effect, we conclude that he erred in denying the claim.
A compensable injury is one which arises out of and in the course of employment. Section 8-41-301(1)(b)-(c), C.R.S. 2007. The “arising out of test is one of causation. It 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. The supreme court has stated that “[a]n activity arises out of and in the course of employment when it is sufficiently interrelated to the conditions and circumstances under which the employee generally performs his job functions that the activity may
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reasonably be characterized as an incident of employment, although the activity itself is not a strict employment requirement and does not confer an express benefit on the employer.” Price v. Industrial Claim Appeals Office, 919 P.2d 207, 210 (Colo. 1996). There is no presumption that an injury that occurs in the course of a worker’s employment also arises out of the employment. Finn v. Industrial Commission, 165 Colo. 106, 437 P.2d 542 (1968); 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). Additionally, it is the claimant’s burden to prove by a preponderance of the evidence that there is a direct causal relationship between the employment and the injuries. Section 8-43-201, C.R.S. 2007 Ramsdell v, Horn, 781 P.2d 150 (Colo.App. 1989). Further, the respondents are liable if employment-related activities aggravate, accelerate, or combine with a pre-existing condition to cause a need for medical treatment. Section 8-41-301(1)(c), C.R.S. 2007; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997).
The determination of whether there is a sufficient “nexus” or causal relationship between the claimant’s employment and the injury is generally 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). Therefore, we must uphold the ALJ’s determination of this issue if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007; Lori’s Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995). This standard of review requires us to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
However, special rules apply in the event an injury is “precipitated” by some preexisting condition brought by the claimant to the workplace. Where the precipitating cause of an injury is a pre-existing condition suffered by the claimant, the injury is not compensable unless a “special hazard” of the employment combines with the pre-existing condition to cause or increase the degree of injury. See National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 763 (Colo.App. 1992). This principle is known as the “special hazard” rule. Ramsdell v. Horn, 781 P.2d 150 (Colo.App. 1989). In addition, to be considered an employment hazard for this purpose, the employment condition must not be a ubiquitous one; it must be a special hazard not generally encountered See Ramsdell v. Horn 781 P.2d 150 (Colo.App. 1989) (high scaffold constituted special employment hazard to worker who suffered epileptic seizure and fell); Gates Rubber Co. v. Industrial Commission, supra (hard level concrete floor not special hazard because it is a condition found in many non-employment locations). The rationale for this rule is that unless a special hazard of employment increases the risk or extent of
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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 v. Rubber Co. v. Industrial Commission, 705 P.2d 6
(Colo.App. 1985); Gaskins v. Golden Automotive Group, L.L.C, W.C. No. 4-374-591 (August 6, 1999) (injury when preexisting condition caused the claimant to stumble on concrete stairs not compensable because stairs were ubiquitous condition).
The claimant asserts on appeal that the ALJ should have disregarded the special hazard doctrine and held his injury to be compensable as having arisen from his conditions of employment. See, e.g., Leuenberger v. Snelling Snelling, W.C. No. 3-881-392 (June 12, 1989) (injury to shoulder with preexisting propensity to dislocate sustained reaching for railing while hurrying up employer’s staircase to deliver work-related messages compensable); Baer v. Rocky Mountain Health, W.C. No. 4-351-679
(March 17, 1999) (precipitating cause of injury was condition of employment — cold temperature — and its effect on preexisting condition); Wernsman v. United Parcel Service, W.C. No. 4-653-560 (July 7, 2006) (injury to knee previously injured in sports accident compensable where claimant shifted weight to knee exiting truck during work). But see, Willis v. Craig Hospital, W.C. 4-627-742 (February 13, 2006) (injury sustained taking step and turning at work did not arise from employment and no special hazard found); Horne v. St. Mary-Corwin Hospital, W.C. No. 4-205-104 (April 14, 1995) (same result regarding injury sustained rising from stool to reach bottle of solution at work).
We conclude that the special hazards doctrine is inapplicable to the facts in this case. Thus, the ALJ applied an erroneous analysis in determining whether the claimant’s injury was work-related. As noted, 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 workers’ compensation is sought.” H H Warehouse v. Vicory, 805 P.2d 1167, 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).
Here, the ALJ expressly found that the claimant aggravated his preexisting left knee condition when he bent down while inspecting an outlet and heard a “pop” in his left knee, also experiencing severe pain in that knee. Order at 2, ¶ 3, ¶ 10. The ALJ appears to have credited the testimony of Dr. Zinis, who stated that “the May 9, 2007
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incident fractured Claimant’s left patella in the location of the non-union and aggravated his preexisting left knee condition.” Order at 3, ¶ 9. As we read the ALJ’s decision, his finding in paragraph ten that the claimant’s incident on May 9, 2007, “fractured his left patella in the location of the non-union and aggravated his preexisting left knee condition” supports the determination that the claimant sustained a compensable injury. He then found that the claimant’s act of bending down to inspect an outlet box, at which point the claimant heard his knee “pop,” did not involve a special hazard. The ALJ noted that the claimant was not found to have twisted, or fallen, or carrying anything to injure his left knee. The ALJ stated that the claimant’s “pre-existing left knee condition thus constituted the precipitating event for his May 9, 2007 injury.” However, the ALJ goes on in that paragraph to also find that the claimant’s act of simply bending to inspect an outlet box indicates that the “[claimant’s pre-existing left knee condition thus constituted the precipitating event for his May 9, 2007 injury.”
It therefore appears from these findings, together with the above-referenced portion of the ALJ’s conclusions of law, that the ALJ applied the special hazards doctrine only after finding that the claimant’s incident on May 9, 2007 aggravated his preexisting knee condition. Cf. Fisher v. Mountain States Fort Truck Sales, W.C. No. 4-304-126 (July 29, 1997) (claimant arose from chair, twisted leg, aggravated non-union of femur, and sustained compensable injury), rev’d, No. 97CA1439 (Colo.App. Feb. 12, 1998) (not selected for publication) See also Bastian v. Canon Lodge Care Center, W.C. No. 4-546-889
(September 19, 2003) (declining to follow majority opinion in Fisher and citing with approval dissenting opinion); Reinhard v. Pikes Peak Broadcasting Co., Inc., W.C. No. 4-114-050 (May 20, 1993) (claimant sustained compensable injury walking down stairs and feeling “pop” in back while turning corner at bottom of stairs).
The ALJ’s dispositive finding of fact is that the May 9, 2007, incident caused the claimant to fracture his left patella where it had a non-union and thus aggravated a preexisting condition. The ALJ’s findings support an award of benefits. Conversely, the finding that the claimant’s work-related activity aggravated the preexisting condition does not
support the factual finding that the injury was “precipitated” by the preexisting condition. In our view, such a finding would only be supportable had the ALJ also found that the claimant’s injury was “spontaneous” and unrelated to his bending over to inspect the electrical fixture. As we read his order, he did not make such factual findings and, indeed, he found that the injury was caused (or “precipitated”) by the change in posture and resulting flexion of the knee as he looked at the outlet. He therefore erred in concluding that the claimant’s injury was not compensable. It is therefore necessary to remand the case to determine the extent of disability and medical benefits to which the claimant is entitled, including a determination of the applicable average weekly wage.
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IT IS THEREFORE ORDERED that the ALJ’s order dated December 31, 2007, is set aside. The matter is remanded for such further proceedings as are necessary to determine the compensation and benefits to which the claimant is entitled.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Curt Kriksciun
Examiner Schrant dissents:
I respectfully disagree with my colleagues. In my opinion the ALJ’s findings of fact do not compel the conclusion that the claimant suffered a compensable injury.
The ALJ found that the claimant had undergone surgery for a preexisting knee condition, which involved internal fixation of the patella with the insertion of two screws. There was testimony that the claimant brought to the workplace a preexisting non-union of his patella. It was noted in the medical record at the time of the May 9, 2007 incident that one of the screws in the claimant’s patella had broken in half and the claimant had sustained a hardware failure in his left patella. A physician testified that he was uncertain whether the hardware had failed prior to the May 9, 2007 incident. The ALJ did not resolve this factual issue. The ALJ found the claimant aggravated his preexisting left knee condition when he bent down while inspecting an outlet. However, the ALJ also found that the claimant’s pre-existing left knee condition constituted the precipitating event for his injury.
It appears that the ALJ may have relied on the principle that an injury or disability causally related to a preexisting condition is not compensable when it results from ubiquitous conditions not specifically related to the work environment. See Hembry v. Industrial Claim Appeals Office, 878 P.2d 114 (Colo.App. 1994) (ALJ implicitly determined that the claimant’s fall upon rising from his chair resulted from the effects of previously prescribed medication under the ubiquitous conditions of employment); Irwin v. Industrial Commission, 695 P.2d 763 (Colo.App. 1984)(claimant’s unexplained and sudden fall to the floor in light of her history of black-outs and losing consciousness could have happened at any other place or time and was not compensable); Cf. Fisher v.
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Mountain States Fort Truck Sales, W.C. No. 4-304-126 (July 29, 1997) (claimant arose from chair, twisted leg, aggravated non-union of femur, and sustained compensable injury), rev’d sub nom., Mountain States Ford Truck Sales v. Industrial Claim Appeals Office Case No. 97CA1439 (Colo.App. Feb. 12, 1998) (not selected for publication). Because I cannot ascertain from the ALJ’s findings whether he concluded that there was a causal connection between the claimant’s injury and the conditions or circumstances of his employment, I would remand this matter for further findings on whether the subsequent need for medical treatment and disability was caused by an industrial aggravation of the pre-existing condition, or by the natural progression of the pre-existing condition.
SCOTT T SHELTON, FORT LUPTON, CO, (Claimant).
ECKSTINE ELECTRIC COMPANY, Attn: MS RENEE MCENTEE, PLATTEVILLE, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
LAW OFFICES OF REGINA WALSH ADAMS, Attn: REGINA M WALSH ADAMS, ESQ., GREELEY, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: RICHARD J LIBY, ESQ., DENVER, CO, (For Respondents).