W.C. No. 4-777-145.Industrial Claim Appeals Office.
September 25, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated April 28, 2009, that denied and dismissed the claimant’s claim for benefits under the Workers’ Compensation Act. We affirm.
The claimant worked for the employer as a custodian. On October 6, 2008, the claimant was walking down a flight of stairs to unlock a classroom door for a teacher when she fell. The claimant was uncertain whether her foot gave out or whether she missed a step. The claimant nonetheless hit her right knee on the stairway wall. The claimant underwent an MRI scan of her right knee, which revealed a complex tear of the medial meniscus, and surgery was performed.
The ALJ found that the claimant failed to show it more probably true than not that the tear she sustained in her right meniscus arose out of either the conditions and circumstances under which she normally performs her job functions or due to a work-related activity or hazard of her employment. The ALJ concluded that the claimant failed to prove by a preponderance of the evidence that she sustained an injury arising out of the course and scope of her employment. The claimant brings this appeal contending the ALJ erred in determining that she did not sustain an injury arising out of and in the course of her employment.
I.
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. 2009. 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
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sufficiently related thereto so as to be considered part of the employee’s service to the employer. 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. 2009; Ramsdell v, Horn, 781 P.2d 150 (Colo. App. 1989).
The determination of whether there is a sufficient 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. Section 8-43-301(8), C.R.S. 2009 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); 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).
The claimant argues that although she may not be sure why her foot slipped on the stairs, she is certain that the cause of her knee injury and her need for surgery was the fact that her knee struck the concrete wall. Here it is undisputed that the claimant had a complex tear of the medial meniscus and that the claimant had surgery for that tear.
However, the ALJ credited the opinions of Dr. Fall. The ALJ with record support made the following findings of fact regarding the opinions of Dr. Fall. Dr. Fall opined that the claimant’s description of hitting the lateral aspect of her knee on a wall is medically insufficient to cause a medial meniscus tear. Exhibit B at 4. Dr. Fall also opined that walking down the stairs was not a work-related mechanism of injury that would cause a meniscus tear. Exhibit B at 4. Dr. Fall opined that there was no work-related mechanism of injury that would cause a complex tear of the right medial meniscus. Tr. 20. Therefore Dr. Fall opined that the meniscus tear and the subsequent treatment including surgery would not be related to the October 6, 2008 incident. Exhibit B at 5.
In our view, the ALJ’s determination regarding the lack of a causal relationship between the claimant’s employment, the meniscus tear and the subsequent surgery is supported by substantial evidence in the record. Contrary to the claimant’s argument, the
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factual evidence in this case did not compel the ALJ to conclude that the claimant’s injury arose out of her employment. Therefore, we are not persuaded that the ALJ committed reversible error in denying the claim.
Moreover, the ALJ also found that it was more probably true that not that the fall the claimant suffered while walking down the stairs at the employer was unexplained and unassociated with the circumstances of her employment. The ALJ therefore concluded that the claimant failed to prove by a preponderance of the evidence that she sustained an injury arising out of the course and scope of her employment.
A truly unexplained fall at the workplace has been determined not to be compensable. See Rice v. Dayton Hudson Corporation
W. C. No. 4-386-678 (July 29, 1999) (claimant’s unexplained fall was not compensable because it could not be associated with the circumstances of the claimant’s employment nor any preexisting idiopathic condition) See also, Finn v. Industrial Commission, supra. Ultimately, the 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, supra.
Here the ALJ made the following findings of fact relating to the unexplained nature of the fall. The claimant is uncertain whether her foot gave out or whether she missed a step. Tr. 13-14. While the claimant is uncertain why she started to fall on the steps, nothing about the stairs themselves caused her to fall. Tr. 13. The claimant represented in answers to interrogatories that she stepped wrong and fell. Exhibit H at 65. The claimant reported to Dr. Brogmus that she was walking down steps when her right foot twisted such that she hit her right knee on the lateral cement wall. Exhibit E at 40. The claimant told a physical therapist that she was walking down the stairs, pivoted right, and felt her right knee give out. Exhibit E at 54. The claimant reported to Dr. Beard that she sustained a twisting injury to her right knee. Exhibit D at 36. The claimant reported to Dr. Fall that she was going down stairs when either her foot gave out or she skipped a step. Exhibit B at 2. The claimant was uncertain what happened. Exhibit B at 4.
The ALJ further found that when interviewed by the insurer the clamant denied any pre-existing right knee problems. Exhibit P at 101. However, the claimant reported to Dr. Brogmus that she contused her right knee in the winter of 2007 when she fell on ice. Exhibit E at 47. The claimant stated that she heard her knee pop when she fell on the ice and that her right knee occasionally felt like it might give way. Exhibit E at 47. While the claimant described a prior left-knee injury at King Soopers, her medical records contradict this and instead describe a prior right-knee injury. Exhibit D at 39-D.
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In our view, the above extensive findings of fact, based on the evidentiary record, constitute substantial evidence supporting the ALJ’s determination that the claimant suffered a truly unexplained fall at the workplace. Therefore, we perceive no basis upon which to set aside the ALJ’s order.
II.
The claimant next contends that the ALJ erred because “ubiquitous” is inapplicable to the facts of the case. Here the ALJ found that the stairs at the employer were ubiquitous and are not a hazard of the claimant’s employment. However, we do not read the ALJ’s order as involving an analysis of the “special hazard” rule, which applies in the event an injury is “precipitated” by some preexisting condition brought by the claimant to the workplace. See National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 763 (Colo. App. 1992); see also, 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). We view the ALJ’s finding regarding the ubiquitous nature of the stairs as dicta. Therefore, in our opinion there was no commission of error.
III
The claimant argues that the respondents instigated a trial by ambush by raising the defense of a “truly unexplained fall” as a new defense for the first time at the hearing. We are not persuaded that the ALJ committed error in considering the issue of the claimant’s accident being an unexplained fall.
In their response to the claimant’s application for hearing the respondents raised the issue of compensability. At the inception of the hearing, the respondents argued the case law involving an unexplained fall. Tr. at 4-5. The claimant did not object at the hearing to consideration of the issue of an unexplained fall nor did the claimant request a continuance. The respondents’ hearing submission, which the claimant did not object to, contains copies of a number of cases involving unexplained falls. Tr. at 4. The respondents’ proposed Findings of Fact, Conclusions of Law and Order contains extensive references to the issue of an unexplained fall. The claimant does not contend that she was misled in discovery or that she in fact directed any discovery to the respondents on the basis for their contest of compensability.
A party’s right to procedural due process is met if the party is provided with notice and an opportunity to be heard Public Utils. Comm’n v. Colo. Motorway, Inc., 165 Colo. 1, 10, 437 P.2d 44, 48 (1968). The essence of procedural due process is fundamental fairness. City County of Denver v. Eggert, 647 P.2d 216, 224 (Colo. 1982). In our view, there was no fundamental unfairness nor was the claimant denied notice or an opportunity to be heard.
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IT IS THEREFORE ORDERED that the ALJ’s order dated April 28, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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IRMA YBARRA, LOVELAND, CO, (Claimant).
THOMPSON SCHOOL DISTRICT RJ-2, LOVELAND, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
IRWIN BOESEN, PC, Attn: LANE N COHEN ESQ, DENVER, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, C/O: LISA A SIMONS ESQ, DENVER, CO, (For Respondents).