W.C. No. 4-653-560.Industrial Claim Appeals Office.
July 7, 2006
FINAL ORDER
The respondents seek review of an order dated February 8, 2006 of Administrative Law Judge Coughlin (ALJ) that found the claimant established by a preponderance of the evidence that he sustained a compensable injury. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant had injured his left knee in a sports accident in 1973. The claimant underwent surgery on his knee and post-operatively experienced some aching from time to time, but this was not disabling. The claimant was a delivery driver for the employer. On June 14, 2005, the claimant stepped out of his truck to the pavement. Claimant had both feet on the pavement with his back facing the truck. From that position, the claimant turned to close the back doors of his truck. The claimant pivoted approximately 180 degrees to his left, a movement which caused him to put more weight on his left leg. The claimant described a feeling of immediate sharp pain and a pop in his knee when he pivoted to the left. The claimant went to the emergency room where an MRI revealed significant findings. Prior to the June 14, 2005 accident the claimant was able to perform his job duties with no work restrictions or lost time.
The ALJ determined that the claimant had met his burden of proving by a preponderance of evidence that he suffered a new injury to his left knee on June 14, 2005, while acting in the course and scope of his employment. The conflicts in the evidence were resolved by the ALJ in the claimant’s favor.
On review the respondents contend that the claimant’s mechanism of injury, standing with both feet flat on the ground and pivoting to the left, as a matter of law, was the result of a ubiquitous condition. The respondents argue that because the claimant’s mechanism of injury was ubiquitous, lacking any special hazard of employment, the claimant’s injury did not arise out of his employment. Therefore, the ALJ erred in determining that the claimant’s claim was compensable.
The respondents also contend that the ALJ erred because she did not address their contention that the claimant’s knee injury did not arise out of employment. The respondents, citing our decision in Horne v. St. Mary Corwin Hospital, W.C. No. 4-2050-14 (April 14, 1995), contend that when an injury results from a combination of an employee’s pre-existing condition and a ubiquitous condition, a claim is not compensable since there is no special hazard that would have injured anyone then and there present, to find that the injury arose from employment. We disagree.
There appears to be no dispute that the claimant’s injury occurred “in the course of” the employment because it occurred within the time, place, and activity limitations associated with the claimant’s job. However, the claimant was also required to prove that the injury was proximately caused by the performance of service “arising out of” the employment. Section 8-41-301(1)(b)-(c), C.R.S. 2005. The arising out of element requires the claimant to prove “a causal connection between the employment and injury such that the injury has its origins in the employee’s work-related functions and is sufficiently related to those functions to be considered part of the employment contract.” Madden v. Mountain West Fabricators, 977 P.2d 861, 863 (Colo. 1999).
Generally, the question of whether an injury “arises out of” employment is a factual question dependent on an examination of the totality of the circumstances. Triad Painting Co. v. Blair, 812 P.2d 638, 643 (Colo. 1991). Thus, we must uphold the ALJ’s determination of this issue if supported by substantial evidence in the record. Section 84-3-301(8), C.R.S. 2005; 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).
In support of their contention that the claimant was required to prove that the knee injury resulted from a “special hazard” of employment the respondent places reliance on Horne v. St. Mary-Corwin Hospital, supra. We subsequently distinguished the Horne decision. See Bastian v. Canon Lodge Care Center,
W.C. No. 4-546-889 (August 27, 2003), corrected order issued
(September 19, 2003). In Bastian the claimant suffered from preexisting arthritis in “all of her joints.” The ALJ found that the claimant proved a compensable injury in proving that as she stepped up the step at the door to the employer’s building she heard her left knee pop and felt excruciating pain. In upholding the ALJ’s finding we noted that 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). However, the special hazard requirement has no application where it is the conditions of the employment which precipitate the injury.
The Bastian decision distinguished Horne noting that i Horne the claimant, a physical therapist, was sitting on a stool performing the duties of her employment. When the claimant “stood up and was taking a step with her right leg to reach for a bottle of saline solution, her right knee buckled.” The ALJ found the claimant failed to prove a causal connection between the duties of employment and the knee injury because the claimant suffered from “a pre-existing weakened knee which rendered the claimant susceptible to re-injury,” and because the stool did not present any “special hazard” of employment.
Here unlike in Horne, the ALJ found the claimant pivoted 180 degrees in closing the back doors of his truck which caused him to put more weight on his left leg. This resulted in the immediate onset of pain. The ALJ noted that even the respondents’ bio-mechanical expert acknowledged that the body movements (shifting weight, torque, twisting) described by the claimant could have caused compression in the claimant’s left knee joint. Thus, the ALJ found that the claimant suffered a new injury to his left knee on June 14, 2005, while acting in the course and scope of his employment. The mere fact that the claimant had pre-existing injury to his left knee surgically repaired did not disqualify the claim because the circumstances and duties of the employment were the precipitating cause of the new injury. H H Warehouse v. Vicory, supra. Moreover, the ALJ did not find that a preexisting condition precipitated the claimant’s injury. Therefore, the “special hazard” requirement is inapplicable Bodine by American Appliances W.C. No. 4-653-473 (June 7, 2006).
Thus, there was no need to establish that turning to close the door to his truck constituted a “special hazard” of the claimant’s employment. The claimant did not allege, and the ALJ did not find, that the knee injury was “precipitated” by the claimant’s preexisting surgically repaired knee injury. See also, Reinhard v. Pikes Peak Broadcasting Co.,
W.C. No. 4-114-050 (May 20, 1993) (claimant sustained compensable back injury when he felt a pop in his back when walking down a flight of stairs, and there was no need to establish a special hazard). Neither was the claimant required to establish that there was a sudden or dramatic event such as tripping or falling. Rather, a compensable injury may be the result of an “unprecedented consequence” of an action. Section 8-40-201(1)-(2), C.R.S. 2005 Martin Marietta Corp. v. Faulk, 158 Colo. 441, 407 P.2d 348
(1965) (claimant need not show an extraordinary event such as slipping or falling, but only an unexpected harm such as might result from heavy lifting on the job).
Therefore, in contrast to Horne, there is no need to determine whether closing the door to his truck constitutes a “special hazard” of employment which elevated the risk or the extent of the injury. In our opinion the present case is closer to Bastian then Horne. Applying these principles here, we find no error in the ALJ’s determination that claimant sustained a compensable injury.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 8, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
Theodore R. Wernsman, Rifle, CO, Paul Getter, UPS, Commerce City, CO, Sandi Goldberg, Liberty Mutual Insurance Company, Irving, TX, Bradley Unkeless, Esq., Denver, CO, (For Claimant).
Robert A Weinberger, Esq., Denver, CO, (For Respondents).