Opinion
W.C. No. 4-601-057.
December 15, 2004.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Mattoon (ALJ) finding that the claimant sustained a compensable injury. The respondent contends the ALJ erred because the claimant's fall was initiated by a personal condition and there was no special hazard of employment. We affirm.
The claimant was employed as a 911 operator. The claimant fell and injured her knee on October 23, 2003, when she "stepped up the one step between the [employees'] parking lot and the door" to the employer's premises.
The ALJ found that in January 2003 the claimant underwent hip surgery for a non-work related condition. The surgery was not completely successful and the claimant was left with one leg which is two inches shorter than the other. Further, the leg is externally rotated, painful, and causes the claimant to walk with a limp. The claimant is unsteady on her feet and required to walk with crutches. The claimant was using crutches when she fell in October 2003.
The ALJ found that the claimant "lost her balance due to the fact that she was stepping up a step while unsteady on crutches." Under these circumstances the ALJ concluded that the "doctrine of special hazards" does not apply because the "step could be considered a condition of employment" which combined with the claimant's preexisting condition to cause the injury. In any event, the ALJ found that the "step could be considered a special hazard, which when combined with Claimant's pre-existing unsteadiness and use of crutches, produced the loss of balance and fall." Consequently, the ALJ ordered the respondent to provide medical treatment for the claimant's knee injury.
On review, the respondent contends that the claimant's fall was precipitated by a personal condition, the preexisting leg problem, and therefore the claimant is required to show a "special hazard" for the knee injury to be compensable. The respondent also contends that the step is not a "special hazard" because it is a ubiquitous condition. Under the circumstances of this case, we are not persuaded by the respondent's argument.
Where a claimant's fall at work is precipitated by a preexisting physical infirmity which is unrelated to the employment, the resulting injuries are not compensable unless a special hazard of employment elevates the risk of injury or increases the seriousness of the injuries sustained. The rationale for this holding is that if a fall is precipitated by a preexisting personal condition the resulting injury does not "arise out of employment" unless a "special hazard" supplies the requisite causal link to the employment. See 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); Gates Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo.App. 1985). However, if a condition of employment merely combines with a preexisting condition to produce the injury there is no requirement to show a special hazard. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1992).
We are uncertain from the ALJ's findings whether or not she found that the claimant's fall was "precipitated" by the preexisting condition or not. (Finding of Fact 7). However, we need not reach the question of whether the special hazard doctrine should apply in the first instance because we conclude the record supports the ALJ's conclusion that, under the circumstances, the step represented a special hazard to the claimant.
A "special hazard" of employment is one which contributes to the accident or to the extent of the injuries sustained. National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d at 1260. However, a condition is not considered to be a special hazard of the employment if it is "ubiquitous" in the sense that it is found generally outside of the employment. Gates Rubber v. Industrial Commission, supra (concrete floor is a ubiquitous condition encountered on sidewalks, parking lots, streets and homes).
We have held that a condition of employment may represent a "special hazard" if an employer subjects the claimant to the condition knowing that, because of the claimant's physical or mental circumstances, the condition represents an elevated risk of injury to the claimant. This is true even if the condition is so ubiquitous that it would not represent an elevated risk to the population at large. In Cox v. Wendy's, 4-006-820 (April 8, 1992), aff'd., Wendy's v. Cox, (Colo.App. No. 92CA0723, January 28, 1993) (not selected for publication), the employer required the claimant, who was ill, to travel from Pueblo to Colorado Springs to attend a meeting. The claimant was seated in a chair at the meeting when he fainted, fell, and struck his head. We stated that "although the chair itself may not ordinarily have constituted a special hazard, we believe that the ALJ could determine that it became one in conjunction with the claimant's acute illness and the employer's demand that he sit in it despite the claimant's professed inability to work." In affirming our order the Court of Appeals stated the following:
An employer's knowledge of a claimant's illness or preexisting condition, in certain cases, may be relevant to the special hazards doctrine. Our statement in Gates Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo.App. 1985), that the employer's awareness of the claimant's pre-existing seizure disorder did not per se establish a causal connection between an injury and employment, does not mean this factor is irrelevant. For instance, if an employer subjects a claimant to conditions of employment which are dangerous in view of the claimant's illness or condition, applicability of the special hazards doctrine may dictate compensability. See Ramsdell v. Horn, supra (high scaffold constituted special employment hazard to worker who suffered epileptic seizure and fell); National Health Laboratories v. Industrial Claim Appeals Office, [citation omitted] (vehicular travel was special hazard of employment to claimant who suffered seizure).
Here, it is not disputed that the employer was aware the claimant was on crutches because of her leg condition and had been for some seven months before she fell on the step. As the ALJ found, this circumstance tended to render the claimant "unsteady" and subject to losing her balance. Nevertheless, the employer continued to require the claimant to negotiate the step in order to enter the place of business. Under these circumstances we believe the ALJ could find, as she did, that the step from the parking lot to the door presented a special risk of falling to the claimant, even though the step might be considered a ubiquitous condition for the population at large. This is particularly true now because many public buildings provide ramps or lifts so that disabled persons can avoid the risks, discomfort and lack of access associated with steps.
Gaskins v. Golden Automotive Group, LLC, W.C. No. 4-374-591 (August 6, 1999), is not authority to the contrary. In that case the claimant contended the number of steps and their composition presented a special hazard. However, unlike the situation here, the claimant did not show that the number and composition of the steps presented a unique risk to him than was not generally present.
IT IS THEREFORE ORDERED that the ALJ's order dated June 24, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ David Cain
___________________ Kathy E. Dean
Patricia Kidwell, Lakewood, CO, City and County of Denver, Denver, CO, Hanifah Chiku, Claims Adjuster, Cannon Cochran Management Services, Inc., Denver, CO, Neil D. O'Toole, Esq., Denver, CO, (For Claimant).
John D. Beckman, Assitant City Attorney, Office of the City Attorney — Litigation Section, Denver, CO, (For Respondent).