FINAL ORDER

The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated June 9, 2008, that denied and dismissed the claimant's claim for compensation. We affirm.

The ALJ made the following pertinent findings of fact. On December 22, 2007 the claimant was bussing tables for the employer. She twisted to her left to place dishes and then twisted to the right. She then felt an immediate onset of low back pain and spasms. The claimant fell to the floor, but was caught by her manager. The claimant had serious and chronic preexisting low back problems. She reported periodic exacerbations of symptoms without cause, including an incident in August 2007. The December 22, 2007 incident was merely another periodic exacerbation of her symptoms without cause as had occurred earlier in August 2007. The ALJ concluded that the incident, while occurring in the course of work, did not cause an injury that arose out of work. The ALJ having determined that the claimant did not suffer a new injury but merely experienced continuing symptoms from her chronic preexisting condition went on to determine that she suffered no new injuries due to any special hazard of employment. The ALJ concluded that the claimant did not suffer a new injury, but merely suffered continuing symptoms from her chronic preexisting conditions. The ALJ therefore denied and dismissed the claim for compensation.

On appeal, the claimant contends the ALJ erred as a matter of law by concluding that the claimant needed to prove a "special hazard" in order to establish that the injury arose out of her employment. The claimant argues that the claim is compensable because the ALJ found that the back spasms occurred in the act of bussing tables and the spasms were immediately preceded by the claimant's twisting her back in the performance of an essential job function. We are not persuaded that the ALJ committed reversible error.

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. 2008. 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. 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. 2008; Ramsdell v, Horn, 781 P.2d 150 (Colo.App. 1989). Further, the respondents are liable if employment-related activities aggravate, accelerate, or combine with a pre-existing condition to cause a need for medical treatment. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997).

The determination of whether there is a sufficient "nexus" or 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. 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). Therefore, we must uphold the ALJ's determination of this issue if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008; 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).

However, special rules apply in the event an injury is "precipitated" by some preexisting condition brought by the claimant to the workplace. Where the precipitating cause of an injury is a pre-existing condition suffered by the claimant, the injury is not compensable unless a "special hazard" of the employment combines with the pre-existing condition to cause or increase the degree of injury. See National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 763 (Colo.App. 1992). This principle is known as the "special hazard" rule. Ramsdell v. Horn, supra. In addition, to be considered an employment hazard for this purpose, the employment condition must not be a ubiquitous one; it must be a special hazard not generally encountered. See Ramsdell v. Horn, supra. (high scaffold constituted special employment hazard to worker who suffered epileptic seizure and fell); Gates Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo.App. 1985) (hard level concrete floor not special hazard because it is a condition found in many non-employment locations). The rationale for this rule is that unless a special hazard of employment increases the risk or extent of injury, an injury due to the claimant's pre-existing condition does not bear sufficient causal relationship to the employment to "arise out of the employment. Gates v. Rubber Co. v. Industrial Commission supra; 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).

As we understand the claimant's argument, she contends that because her back spasms occurred in the act of bussing tables and the spasms were immediately preceded by the claimant's twisting her back in the performance of an essential job function that the back spasm must have been caused by her twisting her back. In our view, this argument commits the logical fallacy of mistaking temporal proximity for a causal relationship. However, correlation is not causation and here the ALJ essentially concluded that there merely existed a coincidental correlation between the claimant's work and her symptoms. In our view, this conclusion is supported by the record.

The claimant does not appear to dispute the factual findings in the ALJ's order. In any event, the ALJ outlined in some detail the claimant's serious and chronic preexisting low back problems. In September 2001, the claimant sought care for low back pain, reporting a history of the onset of low back pain four years earlier. Exhibit J at 148 Exhibit L at 166. The claimant was seen by different physicians and she underwent back surgery in August 2005 at L5-L1. Exhibit R at 223. On August 2007, the claimant experienced severe back pain without any precipitating cause. Exhibit R at 236-238. On October 19, 2007, the claimant called Dr. Bhatti to request refills for her Vicodin and Percocet although Dr. Bhatti refused the request. Exhibit E at 118.

The ALJ found the claimant's histories given to emergency medical personnel and to Dr. Westfall in the emergency room to be persuasive. The claimant reported that she had an onset of spasm while bussing and only then fell. Exhibit R at 257. The claimant did not report a slip that caused spasm and pain. The ALJ further found that the claimant gave incorrect histories to Dr. Rook, Dr.Wallace and Dr. Roth. Tr. at 30-31; Tr at 47 48 51 52; Exhibit A at 23. Therefore, the ALJ found that the initial opinions from her physician that the injury was work-related were not persuasive. Dr. Roth testified that the claimant had a preexisting documented back condition and that the spasm she experienced was idiopathic. Tr. at 98-99 Exhibit A 47. The ALJ concluded that the back pain and spasm was without a work-related cause and represented continuing symptoms from her chronic preexisting back condition.

The claimant also argues that the credibility of the witnesses is not relevant here because the ALJ expressly found that the act of twisting of her back was a physical predicate to the injury. We disagree because, as previously noted, as we read the ALJ's order, he found that the mere temporal relationship between the claimant's movements and the onset of her symptoms did not indicate a causal connection between the symptoms and the industrial event. See Shultz v. Anheuser Busch, Inc., W. C. No. 4-380-560 (November 17, 2000). Here the ALJ, with record support noted above, concluded that the claimant did not suffer a new injury but merely suffered continuing symptoms from her chronic preexisting condition.

As noted above, the determination of whether there is a sufficient "nexus" or causal relationship between the claimant's employment and the injury is generally one of fact. See Hembry v. Industrial Claim Appeals Office 878 P.2d 114 (Colo.App. 1994). Here, the ALJ resolved the issue of whether a causal connection existed between the claimant's work and her injury by determining that the employee's preexisting condition was the direct cause of the injury. We perceive no basis on which to interfere with this determination.

The claimant does not argue that there was any special hazard that caused her injury. Rather, the claimant argues that the injury was precipitated by a twisting of her back while she was bussing tables. Having determined that the direct cause of the claimant's injury was her preexisting condition, the ALJ properly went on to consider whether the resulting disability was compensable because of a special hazard. Hembry v. Industrial Claim Appeals Office supra., citing National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 1259 (Colo.App. 1992). Here the ALJ found the claimant's disability was not compensable because no special hazard of the employment was demonstrated to have contributed to the accident or the injuries sustained by the employee. Hembry v. Industrial Claim Appeals Office supra, citing National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 1259 (Colo.App. 1992). We again perceive no need to interfere with this determination.

IT IS THEREFORE ORDERED that the ALJ's order issued June 9, 2008 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

_______________________ Curt Kriksciun

_______________________ Thomas Schrant

MEGAN B SCULLY, COLORADO SPRINGS, CO, (Claimant), HOOTERS OF COLORADO SPRINGS, Attn: CITADEL MALL, COLORADO SPRINGS, CO, (Employer), TRAVELERS INSURANCE COMPANY, Attn: MS CAROLE V LANGDON, DENVER, CO, (Insurer), CROSS BENNETT, L.L.C., Attn: KEITH CROSS, ESQ., COLORADO SPRINGS, CO, (For Claimant).

THOMAS, POLLART MILLER, LLC, Attn: ERIC POLLART, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).