W.C. No. 4-619-435.Industrial Claim Appeals Office.
February 13, 2006.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Coughlin (ALJ) dated September 30, 2005 that denied and dismissed the claim. We affirm.
The ALJ’s pertinent findings of fact may be summarized as follows. The claimant, who was an engineering student enrolled at the University of Colorado, was also employed by the university as an assistant lab monitor. On May 14, 2005, at approximately 10:30 p.m., she was present on the campus finishing a school project with the professor and her classmates, when she entered one of the laboratories and was the victim of a physical assault. Although the claimant testified that she had been asked to monitor the lab that evening and was therefore performing work duties at the time, the ALJ credited the testimony of her supervisor, Josh Cady, that he had not made any such request of the claimant and that she was not authorized to be in the lab that evening. Resolving conflicting testimony, the ALJ concluded that the claimant had not carried her burden of showing that she was injured in the course and within the scope of her employment and, accordingly, she denied the claim.
On appeal the claimant contends that at the time she was assaulted she was performing services in connection with her job and that benefitted her employer. She argues that even if, because her shift had ended at 6:00 p.m., she were not strictly in the course of her employment, the fact that her actions benefitted the employer is sufficient to make the injury compensable. However, given the ALJ’s factual findings that the claimant was not performing any activity related to her job, we are not persuaded that the ALJ erred in denying the claim.
To recover workers’ compensation benefits, the claimant must prove she suffered a compensable injury. A compensable injury is one which arises out of and in the course of employment. §8-41-301(1)(b), C.R.S. 2005. 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. In this regard, there is no presumption that an injury which occurs in the course of a worker’s employment 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). Rather, 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. § 8-43-201, C.R.S. 2005; Ramsdell v, Horn, 781 P.2d 150 (Colo.App. 1989).
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. § 8-43-301(8), C.R.S. 2005. Under this standard, we must defer to the ALJ’s credibility determinations, her resolution of conflicts in the evidence, and her assessment of the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
We disagree with the claimant’s argument that her injury necessarily arose out of her employment. It is true that the mere fact that her shift had ended at 6:00 p.m. does not necessarily compel the conclusion that her claim was not compensable. And her testimony that her supervisor, Joshua Cady, requested that she tend to the laboratories that evening would certainly have been sufficient to support the conclusion that her injury arose out of her employment. See tr. at 26. However, the ALJ was not persuaded that Cady made such a request. The ALJ specifically found that the claimant was not working for the employer “at [its] specific request,” or that she was performing any actual duties of her employment at the time of the injury. Findings of Fact, Conclusions of Law and Order at 3, ¶ 16. This finding is amply supported by the testimony of Cady, who stated that on May 14, 2004 the claimant was not performing any employment duties in the lab that evening. Tr. at 70. He specifically denied requesting the claimant to work that evening, tr. at 69, and stated that neither the claimant nor any other person was authorized to be in the lab that night. Tr. at 71-72. This testimony is sufficient to support the ALJ’s findings that the claimant was not performing any work-related duties at the time she was assaulted. Moreover, the ALJ’s findings support the denial of the claim, and the existence in the record of evidence that would support a contrary result is irrelevant on appeal Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002).
Insofar as the claimant also argues that her injury should have been compensable under the “dual purpose” doctrine, we disagree. Under that doctrine, an injury suffered by an employee performing acts for the mutual benefit of the employer and the employee is compensable. E.g., Deterts v. Times Publishing Co., 38 Colo. App. 48, 552 P.2d 1033 (1976). Thus, for example, in Capalety v. The Humane Society of the Pikes Peak Region, W.C. No. 4-232-993
(October 24, 1996) we affirmed an award of benefits where the claimant was injured on his lunch hour after conducting some personal business at the courthouse. On the way to the courthouse to tend to his personal affairs, the claimant had stopped at another office to check for subpoenas in connection with his employment. Because the claimant’s trip during his lunch hour had the dual purpose of benefitting both his employer and him, the accident that occurred while returning to the office was compensable.
Here, the claimant argues that, despite the fact that she may have been present in the building in order to work on her class project, checking and closing the lab constituted a benefit to the employer within the meaning of the dual purpose doctrine. However, the ALJ’s factual findings do not support this theory. As noted, the ALJ’s dispositive factual finding is that the claimant failed to carry her burden of showing that “she was actually performing duties in her position as a student assistant lab monitor at the time she was assaulted.” Findings of Fact, Conclusions of Law and Order at 3, ¶ 16. Hence, under the dual purpose doctrine it is true that the claimant’s presence in the building to work on a project does not compel the conclusion that her injury was not compensable. However, the factual finding that she was not performing any service connected with her job duties at the time of her injury does compel that conclusion. Hence, we may not disturb the ALJ’s order.
For similar reasons we reject the claimant’s argument that her injuries were compensable under the “positional risk” doctrine. The positional risk doctrine applies when the duties of the claimant’s employment place her at a time and location where she is injured by a “neutral force.” A neutral force is one which is neither peculiar to the employment nor personal to the claimant. The positional risk doctrine has been applied in cases where the claimant was struck by lightening, or by a stray bullet, or was the victim of a random assault. E.g., Horodyskyj v. Karanian, 32 P.3d 470 (Colo. 2001); H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). Although the assault in the present case might well be characterized as a “neutral force, that issue is not determinative here. Rather, the test for application of the positional risk doctrine is whether “the employee, in the course of her employment, was reasonably required to be at a particular place at a particular time and there met with a `neutral force. . . .’ In re Question Submitted by the United States Court of Appeals for the Tenth Circuit, 759 P.2d 17, 22 (Colo. 1998). Because the ALJ rejected the claimant’s testimony that she was performing work-related duties at the time of the assault and found to the contrary, her employment did not require her to be at the lab that evening and the positional risk doctrine does not apply.
Insofar as the claimant raises other particular arguments, they have been considered and do not persuade us to alter this result.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 30, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Ghazaleh Shirzadian, c/o John G. Taussig, Jr., Esq., Boulder, CO, University of Colorado/Denver, Denver, CO, University Risk Management, Boulder, CO, John G. Taussig, Jr., Esq., Boulder, CO, (For Claimant).
Mark H. Dumm, Esq. and Willow I. Arnold, Denver, CO, (For Respondents).