W.C. No. 4-675-476.Industrial Claim Appeals Office.
January 20, 2010.
ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated August 14, 2009, that denied and dismissed the claim for workers’ compensation benefits. We affirm the order in part, set aside in part, and remand for further proceedings.
The claimant worked for the City of Greenwood Village as an administrative assistant with the police department. On January 30, 2006, the claimant slipped and fell while returning to the police building after leaving the employer’s premises to have lunch with a friend. The claimant’s lunch companion drove them to where they had lunch and on returning stopped the car in a restricted parking lot outside a set of doors to the entrance of the police building. The claimant climbed out of the car and walked toward the building. The claimant misjudged the curb, lost her balance, and fell while stepping up onto the sidewalk outside the doors. The claimant struck her right knee and the middle finger of her left hand on the concrete sidewalk.
The ALJ found that the claimant had showed that her injury occurred in the course of her employment because she was performing an activity incidental to her employment; that is, she was hurrying back into the police building after returning from lunch in order to relieve a fellow worker from covering telephones. However, the ALJ also determined that the claimant had failed to show that her injury arose out of a hazard of her employment. Therefore, the ALJ concluded that the claim for workers’ compensation benefits should be denied and dismissed. The claimant brings this appeal.
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I.
Under the Workers’ Compensation Act of Colorado, §§ 8-40-101 to 8-47-209, C.R.S. 2009 (Act) an employee is entitled to compensation where the injury or death is proximately caused by an injury or occupational disease arising out of and in the course of the employee’s employment. Section 8-41-301(1), C.R.S. 2009; Horodyskyj v. Karanian 32 P.3d 470 (Colo. 2001). The phrases “arising out of and “in the course of are not synonymous and a claimant must meet both requirements. Younger v. City County of Denver, 810 P.2d 647, 649 (Colo. 1991); In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17, 20 (Colo. 1988). The latter requirement refers to the time, place, and circumstances under which a work-related injury occurs. Popovich v. Irlando, 811 P.2d 379, 381 (Colo. 1991). Thus, an injury occurs “in the course of employment when it takes place within the time and place limits of the employment relationship and during an activity connected with the employee’s job-related functions. In re Question Submitted by U.S. Court of Appeals, supra; Deterts v. Times Publ’g Co., 38 Colo. App. 48, 51, 552 P.2d 1033, 1036 (1976). The parties do not dispute that the claimant’s injury occurred in the course of her employment.
The term “arises out of refers to the origin or cause of an injury. Deterts v. Times Publ’g Co., supra. There must be a causal connection between the injury and the work conditions for the injury to arise out of the employment. Younger v. City County of Denver, supra. An injury “arises out of employment when it has its origin in an employee’s work-related functions and is sufficiently related to those functions to be considered part of the employee’s employment contract Popovich v. Irlando, supra.
Here the ALJ found that the fall occurred in the course of the claimant’s employment, but determined that it did not arise out of the employment because the claimant failed to prove the requisite causal connection. In addition, the ALJ found that the injury did not involve a hazard of her employment. In reaching that determination, the ALJ made the following findings. Concrete curbs and concrete sidewalks are ubiquitous and are not a special risk of employment. Stepping over a curb to a sidewalk is an activity of daily life that is unrelated to the claimant’s work-related functions as an administrative assistant. There was no persuasive evidence showing that the curb and sidewalk area was icy, slippery, or otherwise hazardous.
In our view, the present case is not the situation where a fall at work was precipitated by a preexisting non-industrial condition, in which case the resulting injuries are not compensable unless some special hazard of employment increases the probability of or severity of the injury. See Gates Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo. App. 1985). A “special hazard” of employment is one which increases either the risk of injury or the severity of injury when combined with the preexisting condition, which is the direct or precipitating cause of the injury National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 1259 (Colo. App. 1992) (vehicular travel was
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a special hazard of employment even though accident was precipitated by preexisting epilepsy); Ramsdell v. Horn, 781 P.2d 150 (Colo. App. 1989) (25-foot scaffold was special hazard to employee whose fall was precipitated by preexisting epilepsy).
Rather the fall here was precipitated by the circumstances or conditions of the claimant’s employment, and therefore the resulting injury is compensable without regard to the existence of a “special hazard” or the claimant’s negligence in contributing to the injury Childers v. Swift Transportation, W. C. No. 4-571-907 (November 8, 2004). Where the claimant’s injury is initiated or precipitated by an event or condition “associated with the employment,” the claimant is not required to prove a “special hazard” in order to recover benefits. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo. App. 1990); Warm v. Safeway, W.C. No. 4-465-204 (October 5, 2001). Proof of a “special hazard” is required only when the claimant’s fall is precipitated by a preexisting idiopathic disease or condition. National Health Laboratories v. Industrial Claim Appeals Office, supra; Ramsdell v. Horn, supra. This is true because if the fall is precipitated by a preexisting condition, which is personal to the claimant, the requirement of work connection is not fulfilled unless a special hazard of the employment contributes to the accident or the injury sustained. National Health Laboratories v. Industrial Claim Appeals Office, supra; Gates Rubber v. Industrial Commission, supra.
Here the ALJ did not find the claimant’s fall was precipitated by a preexisting condition. To the contrary, the ALJ found her injury occurred in the course of her employment because she was performing an activity incidental to her employment. The claimant was hurrying back into the police building after returning from lunch in order to relieve a fellow worker from covering telephones and fell while stepping onto a sidewalk. Therefore, there was no need for the claimant to demonstrate the existence of some special hazard of employment.
Neither is this an “unexplained fall” case such as Rice v. Dayton Hudson Corp., W.C. No. 4-386-678 (July 29, 1999). I Rice, the ALJ found as fact the claimant was “unable to provide any explanation for her fall.” Consequently, in Rice the Panel held the claimant’s unexplained fall was not compensable because it could not be associated with the circumstances of the claimant’s employment nor with any preexisting idiopathic condition, and Colorado law does not create a presumption that injuries, which occur in the course of employment, necessarily arise out of employment. See Finn v. Industrial Commission, 165 Colo. 106, 437 P.2d 542 (1968) (no presumption that an injury that occurs in the course of a worker’s employment also arises out of the employment); 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).
Here, however, the claimant’s fall was not “unexplained.” The ALJ found that the
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claimant climbed out of the car and walked toward the building. The claimant misjudged the curb, lost her balance, and fell while stepping up onto the sidewalk outside the doors. Thus, the claimant’s injuries resulted from an identifiable accidental event, which occurred during work-related activity. See Olivas v. Keebler Company, W. C. No. 4-418-316 (May 3, 2001).
Therefore, in our view, the ALJ’s determination that the claim for workers’ compensation benefits under the Act be denied and dismissed must be reversed. However, this analysis does not apply to the ALJ’s determination that the claimant failed to show that she injured her back during the January 30, 2006 fall.
II.
The ALJ, independent of his conclusion to dismiss the claim on the ground that her fall did not arise out her employment, found that the claimant had failed to show that she injured her lower back during the slip and fall at work on January 30, 2006. The ALJ made the following findings of fact, which have not been challenged by the claimant on appeal.
The ALJ credited the medical opinion of Dr. Kawaski in finding it medically improbable that the claimant’s lumbar spine symptoms arose out of the claimant’s fall at work. Exhibit B at 9. Dr. Kawasaki’s opinion is supported by the medical records of Dr. Watson, which show that the claimant did not report lower back symptoms for some 16 months, until June 19, 2007. Exhibit F at 41, 52. Dr. Kawasaki’s opinion is further supported by the claimant’s failure to report any injury to her lower back while treating with Dr. Conforti between April 12, 2006, and April 5, 2007. Exhibit G at 69-99. Because of the inconsistencies between the claimant’s testimony and the histories given to Dr. Watson, Dr. Conforti, and Dr. Kawasaki, the ALJ was unable to credit the claimant’s testimony that she injured her lower back on January 30, 2006.
Because the issue of the causal connection between the fall and the claimed back injury is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. In our view, the above constitutes substantial evidence supporting the ALJ’s determination and therefore we affirm the determination that the claimed back injury is not compensable.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 14, 2009 is set aside insofar as it concluded that the claimant had failed to prove by a preponderance of the evidence that she sustained an injury arising out of and in the course and scope of her employment. The matter is remanded for entry of a new order on this issue in accordance with the views expressed herein on the issue of disputed medical benefits.
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IT IS THEREFORE FURTHER ORDERED that the ALJ’s order is otherwise affirmed on the determination that the claimed back injury is not compensable.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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JULIE PIEPER, PARKER, CO, (Claimant).
CITY OF GREENWOOD VILLAGE, GREENWOOD VILLAGE, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
STENINGER BALKENBUSH, LLC, Attn: VINCENT M BALKENBUSH, ESQ., ENGLEWOOD, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: KENT L YARBROUGH, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: JON ATKINS, ESQ., DENVER, CO, (Other Party).
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