Opinion
W.C. No. 4-839-225.
October 11, 2011.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Harr (ALJ) dated April 14, 2011, and mailed on April 15, 2011, which determined that the claimant suffered a compensable injury and awarded medical benefits. We affirm.
The ALJ's pertinent findings of fact are as follows. On October 4, 2010, the claimant was sitting at her desk at work when she decided to use the restroom. The claimant pushed her chair back from the desk, and stood up from her chair when she experienced severe lower back pain. The claimant continued to work, but her lower back pain persisted through October 5, at which time she reported the pain to her supervisor.
As pertinent here, in January 2009, approximately nine months prior to experiencing severe low back pain while at work, the claimant suffered an incident involving her low back when she was at home. As the claimant was reaching into the washing machine, she suffered immediate and intense pain in her low back. Exhibit 18 at 193.
On April 7, 2011, a hearing was held on the issue of whether the claimant's October 4, 2010, injury arose out of her employment. Tr. at 5-6, 10. During the hearing, Brian D. Lambden, M.D. testified regarding his independent medical examination of the claimant. Dr. Lambden gave testimony regarding the claimant's low back incident while removing clothes from the washing machine at home, and he opined that the claimant had a pre-existing degenerative condition, or a lumbar disc disease at L4-5. Dr. Lambden also testified, however, that there was nothing in the medical records which showed that the claimant had a continuing problem with low back pain in the time between January 2009 to October 2010. Tr, at 18, 29-30. Dr. Lambden further testified that the claimant's pre-existing degenerative lumbar spine condition made her susceptible to a disc herniation from an activity such as standing up. Tr. at 19-20. Dr. Lambden opined that the "mechanism" of the claimant's injury that resulted in the onset of her pain was the act of standing up. Tr. at 18. Dr. Lambden also testified that 80% of individuals have degenerative disc disease by the time they are the claimant's age, and that some of those individuals develop a disc herniation.
On April 8, 2011, the ALJ entered a Summary Order in favor of the claimant, concluding that the claimant's injury to the disk at L4-5 arose out of her employment. On April 12, 2011, the respondent timely requested specific findings of fact and conclusions of law pursuant to the requirements set forth in § 8-43-215, C.R.S. On April 15, 2011, the ALJ served his specific findings of fact, conclusions of law, and order, ruling that the claimant proved by a preponderance of the evidence that she sustained an injury arising out of her employment. Crediting Dr. Lambden's medical opinion, the ALJ found that the claimant sustained an acute disk protrusion at the L4-5 level of her lumbar spine while at work on October 4, 2010. The ALJ found that the claimant's disk protrusion was caused by the act of standing up from her chair to attend to her personal comfort. The ALJ also found that the claimant has an underlying, preexisting degenerative disk disease (DDD) in her lumbar spine that likely is age-related, and that is a common developmental process afflicting 80% of the population of persons her age. The ALJ found in pertinent part as follows:
14. Claimant showed it more probably true than not that her disk protrusion at the L4-5 level of her lumbar spine occurred when standing up from her chair at work to attend to her personal comfort. Claimant showed it more probably true that the activity of standing up from her chair caused, intensified, or, to a reasonable degree, aggravated her underlying DDD process, resulting in a protrusion of the disk at the L4-5 level of her lumbar spine. Although standing up from a chair is a normal activity of daily living, that activity caused the disk at L4-5, weakened by years of a DDD process, to protrude. Claimant engaged in the activity of standing while attending to her personal comfort. Findings of Fact ¶ 14.
The respondent filed its Petition to Review on May 5, 2011.
I.
Initially, the claimant argues that the respondent's Petition to Review was untimely filed under § 8-43-215, C.R.S. and § 8-43-301, C.R.S. and, therefore, we lack jurisdiction to review the ALJ's order. The claimant argues that the ALJ entered a Summary Order on April 8, 2011, which triggered the 20 day deadline for the respondent to file its Petition to Review. The claimant, therefore, argues that the respondent's Petition was due on or before April 28, 2011. The claimant contends that even though a request for a full order is a prerequisite to review under § 8-43-215, C.R.S., this does not stay the 20 day time period within which to file a petition for review. As support for this contention, the claimant relies upon prior versions of § 8-43-215, C.R.S. In particular, the claimant argues that under the 2000 version of § 8-43-215, C.R.S., it specifically contained language that stayed the time within which to file a petition for review. The claimant asserts that since the 2007 version of § 8-43-215, C.R.S. did not contain a provision for a stay of the time within which to file a petition for review, this means that the respondent was required to file its Petition within 20 days from the date of the ALJ's Summary Order. The claimant contends that since the respondent did not file its Petition to Review until May 5, 2011, its appeal is untimely and we are without jurisdiction. We reject the claimant's argument.
Section 8-43-215, C.R.S., provides in pertinent part as follows:
(1) . . . If an administrative law judge has issued a summary order, a party dissatisfied with the order may make a written request for a full order within seven working days after the date of mailing of the summary order. The request shall be a prerequisite to review under section 8-43-301. If a request for a full order is made, the administrative law judge shall have ten working days after receipt of the request to issue the order. A full order shall be entered as the final award of the administrative law judge or director subject to review as provided in this article. (emphasis added)
Further, § 8-43-301(2), C.R.S. provides that a petition for review must be filed "within twenty days after the date of the certificate of mailing of the order . . ." It is well settled, however, that this provision only applies to the review of final orders. Cf. Director of the Division of Labor v. Smith, 725 P.2d 1161 (Colo. App. 1986) (order not reviewable unless it is "final"). Accordingly, we lack jurisdiction to review orders or portions of orders which are not final and reviewable within the meaning of § 8-43-301(2). Cf. Ortiz v. Industrial Claim Appeals Office, 81 P.3d 1110 (Colo. App. 2003).
Moreover, when construing a statute, the statutory scheme must be read as a whole "to give a consistent, harmonious, and sensible effect to all its parts." Dillard v. Indus. Claim Appeals Office, 121 P.3d 301, 303 (Colo.App. 2005), aff'd, 134 P.3d 407 (Colo. 2006). Further, under the rules of statutory construction, the legislature generally is presumed to be aware of relevant case precedent in an area of law when it enacts subsequent legislation in that particular area. See Vaughan v. McMinn, 945 P.2d 404 (Colo. 1997).
Here, the ALJ entered a Summary Order on April 8, 2011. On April 12, 2011, the respondent timely requested a full order of specific findings of fact and conclusions of law pursuant to the requirements set forth in § 8-43-215, C.R.S. As stated in § 8-43-215, C.R.S., the request for a full order is a prerequisite for appellate review under § 8-43-301, C.R.S. Further, under § 8-43-215, C.R.S., a full order constitutes the "final award or order of the administrative law judge or director that is subject to review" under § 8-43-301, C.R.S. The legislature is presumed to be aware of case precedent which holds that a petition for review under § 8-43-301(2), C.R.S., must be filed within twenty days after the date of the certificate of mailing of a final order. See Vaughan v. McMinn, supra. Since § 8-43-215, C.R.S. provides that a full order shall be entered as the final award of the administrative law judge, it logically follows, therefore, that under § 8-43-215, C.R.S. and § 8-43-301(2), C.R.S., the respondent could not file its Petition to Review until the request for a full order was made and the ALJ served his specific findings of fact, conclusions of law, and order. Cf. Director of the Division of Labor v. Smith, supra (§ 8-43-301(2), C.R.S. applies to review of final orders). Consequently, contrary to the claimant's argument, when reading the statutory provisions together, as we are required to do, we conclude that the respondent's request for a full order stayed the 20 day time period for filing its Petition to Review. Since the respondent's Petition to Review was filed on May 3, 2011, within 20 days from the date that the ALJ served his full order, the respondent's Petition was timely filed, and we possess jurisdiction over the respondent's appeal.
II.
The respondent contends that the claimant failed to establish that her lower back injury arose out of her employment. The respondent asserts that the claimant's pre-existing injury precipitated the accident and, therefore, the resulting jury is not compensable since there was no special hazard of employment that combined with her pre-existing condition to cause or increase the degree of injury. As such, the respondent asserts that the ALJ's findings justify a reversal of his legal conclusion that the claimant's injury arose out of her employment. We are not persuaded.
Pursuant to § 8-41-301(1)(c), C.R.S., a disability is compensable if it is shown that it was "proximately caused by an injury . . . arising out of and in the course of the employee's employment." See also § 8-41-301(1)(b), C.R.S. As pertinent here, the question of whether an injury "arises out of" employment is a factual question and is to be resolved by considering the totality of the circumstances. Triad Painting Co. v. Blair, 812 P.2d 638, 643 (Colo. 1991). "For an injury to arise out of employment, the claimant must show 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) (quoting Triad Painting Co. v. Blair, 812 P.2d 638, 641 (Colo. 1991)). Accordingly, we must uphold the ALJ's determination of this issue if it is supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.; see 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).
It is well settled that "where the industrial injury aggravates, accelerates, or combines with a preexisting disease or infirmity to produce the need for treatment, the treatment is a compensable consequence of the industrial injury." Duncan v. Industrial Claim Appeals Office, 107 P.3d 999, 1001 (Colo. App. 2004); see also H H Vicory, 805 P.2d 1167 (Colo. App. 1990). The special hazard requirement applies where the precipitating cause of an injury is a pre-existing non-industrial condition which the claimant brings into the workplace. The special hazard does not apply, however, where the conditions of the employment precipitate the injury. 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); Wernsman v. United Parcel Service, W.C. No. 4-653-560 (July 7, 2006).
Moreover, actions such as eating, sleeping, resting, washing, toileting, seeking fresh air, getting a drink of water and keeping warm have been held to be incidental to employment under the "personal comfort" doctrine. In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17, 22-23 (Colo. 1988); Industrial Commission v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952). Colorado appellate courts consistently have held that under the personal comfort doctrine, a resulting injury arises out of and in the course of the employment while the employee is on the employer's premises ministering to personal necessities. Industrial Commission v. Golden Cycle Corp., supra; Stribling v. Home Depot USA, Inc., W.C. No. 4-597-408 (October 13, 2004). Underlying the personal comfort doctrine is the assumption that "personal comfort" is necessary to maintain an employee's health, and is indirectly conducive to the employer's purposes. See Ocean Accident Guaranty Corp. v. Pallaro, 66 Colo. 190, 180 P. 95 (1919). Further, it is sufficient if the injury arises out of a risk which is reasonably incidental to the conditions and circumstances of employment. Cf. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo. App. 1995). This includes discretionary activities on the part of the employee which do not have any duty component, and are unrelated to any specific benefit to the employer. Cf. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985).
Here, when applying the foregoing legal principles, we conclude that the ALJ did not err in finding that the claimant sustained an injury that arose out of her employment. In his order, the ALJ specifically found that the claimant's "disk protrusion at the L4-5 level of her lumbar spine occurred when standing up from her chair at work to attend to her personal comfort." The ALJ further found that the claimant showed "that the activity of standing up from her chair caused, intensified, or, to a reasonable degree, aggravated her underlying DDD process, resulting in a protrusion of the disk at the L4-5 level of her lumbar spine." Findings of Fact ¶ 14. Based on these findings, it is clear that the ALJ held that it was the claimant's duties of employment, rather than her pre-existing disability, that proximately caused the injury to her lumbar spine. Merely because the claimant suffered from a pre-existing degenerative lumbar spine condition, this did not disqualify the claimant's claim because the ALJ found that the circumstances and duties of her employment were the precipitating cause of her injury. H H Warehouse v. Vicory, supra. Thus, despite the respondent's argument to the contrary, the ALJ did, in fact, address causation, and his conclusion that the claimant's injury arose out of her employment or was proximately caused by the duties of her employment, was not in error.
Moreover, the respondent argues that the ALJ failed to resolve evidentiary conflicts in the record in such a way as to show that the special hazard doctrine was addressed or considered. Respondent's Brief at 7. Despite the respondent's argument to the contrary, the ALJ was not required to consider whether the chair or desk constituted a "special hazard" of the claimant's employment. Again, the ALJ did not find that the claimant's lumbar injury was "precipitated" by her pre-existing back condition. Rather, the ALJ specifically found that the claimant's injury was precipitated by the duties of her employment, or using the restroom or ministering to a personal necessity, which Colorado appellate courts routinely and consistently have held that the resulting injury arises out of and in the course of the employment. In re Question Submitted by U.S. Court of Appeals, supra; Ventura v. Albertsons' Inc., supra. Under these circumstances, therefore, the ALJ did not err in concluding that the claimant's injury arose out of her employment without regard to the existence of a "special hazard." Shelton v. Eckstine Electric Company, W.C. No. 4-724-391 (May 30, 2008); Childers v. Swift Transportation, W. C. No. 4-571-907 (November 8, 2004).
Additionally, we recognize that there are a number of cases holding a claim not to be compensable where the claimant suffered an injury while arising from a chair. See Horne v. St. Mary-Corwin Hospital, W.C. No. 4-205-014 (April 14, 1995); Crass v. Cobe Laboratories, W.C. No. 3 960 662 (October 10, 1991), aff'd., Crass v. Industrial Claim Appeals Office, (Colo. App. No. 91CA1776, July 2, 1992) (NSOP) (injury not compensable where there was no evidence that arising from chair precipitated aggravation of the prior knee strain, or that the chair aggravated or elevated risk or extent of injury). Conversely, in this action, the ALJ found that it was the conditions of the claimant's employment or the act of standing up from her chair to tend to her personal comfort that constituted the proximate cause of her lower back injury or that was a precipitating cause of the aggravation of her pre-existing lower back condition.
III.
The respondent also argues that the act of standing up from a chair is a ubiquitous activity of daily life and, therefore, is not a risk generated by the claimant's work-related activities. Consequently, the respondent contends that the ALJ's finding that the claimant sustained a disk protrusion of her lumbar spine when standing up from her chair at work, justifies reversal of his conclusion that the claimant's claim was compensable. We disagree.
A ubiquitous condition is one that is found in all places, on the job as well as off the job. See Gates Rubber v. Industrial Commission, 705 P.2d 6 (Colo. App. 1985) (concrete floor is a ubiquitous condition encountered on sidewalks, parking lots, streets and homes); Kidwell v. City of Denver, W. C. No. 4-601-057 (December 15, 2004). If a condition is ubiquitous, it usually is not considered to be a special hazard of employment since it generally is found outside of the employment. Gaskins v. Golden Automotive Group, L.L.C., W.C. No. 4-374-591 (August 6, 1999) (injury when pre-existing condition caused the claimant to stumble on concrete stairs not compensable because stairs were ubiquitous condition). For example, in Crass v. Cobe Laboratories, supra, the claimant suffered a knee injury while getting out of a chair when at work. The claimant's claim was held to be not compensable. The ALJ found that the chair did not precipitate the claimant's injury, and disbelieved the only evidence that was offered to show that the conditions of employment combined with or aggravated the claimant's condition so as to cause the injury. The ALJ instead concluded that the chair was a ubiquitous condition.
Here, the ubiquitous condition principle is inapplicable. Again, the ALJ did not find that the claimant's low back injury was "precipitated" by her pre-existing back condition. Rather, the ALJ specifically found that the claimant's injury was precipitated by the duties of her employment, or the act of standing up from her chair to use the restroom or to tend to her personal comfort. Thus, unlike in Crass, since the ALJ found that the claimant's injury was precipitated by the duties of her employment rather than a ubiquitous condition, her claim was compensable without regard to a showing of a special hazard of employment.
Likewise, to the extent that the positional-risk doctrine was raised during the hearing, we conclude that the doctrine is inapplicable in this action. In re Question Submitted by U.S. Court of Appeals, 759 P.2d at 20-21 (injury arises out of employment if it would not have occurred but for the fact that the conditions and obligations of employment placed claimant in position where she was injured; compensation supported in cases of stray bullets, roving lunatics). The positional risk analysis applies when the cause of an event is neither personal to the claimant nor distinctly associated with employment. Id. Under such circumstances, the only connection between the claimant's injury and the claimant's employment is that the obligations of work placed the employee in a particular place at a particular time when the claimant was injured by a "neutral force." "Neutral force" means one that is neither personal to the claimant nor distinctly associated with the employment. Id. Here, however, it is apparent that the positional-risk doctrine does not apply. This is because the ALJ found that the claimant's injury was caused by the conditions of her employment, or arising from her chair in order to attend to her personal needs.
IV.
The respondent also contends that the ALJ's findings of fact were consistent with a conclusion that the claimant's pre-existing lower back condition was the significant precipitating factor leading to her experience of sudden back pain. Consequently, the respondent again argues that the ALJ's findings justify a reversal of his conclusion that the claimant's claim is compensable. Again, we are not persuaded.
Pursuant to § 8-43-301(8), C.R.S., we have authority to set aside an ALJ's order only where the findings of fact are not sufficient to permit appellate review, conflicts in the evidence are not resolved, the findings of fact are not supported by the evidence, the findings of fact do not support the order, or the award or denial of benefits is not supported by applicable law. Further, we are required to uphold the ALJ's factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. "Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence." Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 414 (Colo. App. 1995).
Contrary to the respondent's arguments, we conclude that the ALJ's findings of fact are supported by substantial evidence in the record, are not contradicted by prior case law, and are consistent with his conclusion that the claimant's work related activities combined with her preexisting condition to cause her injury. The ALJ did not find that the claimant's act of arising from her chair, standing alone, supported a finding of compensability. Rather, as stated numerous times above, the ALJ specifically found that the claimant's "disk protrusion at the L4-5 level of her lumbar spine occurred when standing up from her chair at work to attend to her personal comfort." Findings of Fact #14. The ALJ then concluded that "there is no question that claimant was injured while attempting to get up from her desk to go to the restroom, which puts her squarely in the course of employment." Conclusions of Law at 5. It was not necessary for the ALJ to enter additional findings in order to hold the claimant's claim compensable. The ALJ is not held to a crystalline standard in expressing findings of fact and conclusions of law. Rather, it is sufficient for the ALJ to make findings concerning that evidence which he considers dispositive of the issues, and he need not discuss the ramifications of all contrary evidence and inferences. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo. App. 2000); Maes v. Federal Fruit Produce, W. C. Nos. 4-246-932, 4-409-427, 4-413-589, 4-416-013 (May 10, 2001). The ALJ's finding that the claimant arose from her chair to use the restroom, is consistent with the conclusion that the claimant's conditions of employment were the precipitating factor leading to her experience of sudden back pain. In re Question Submitted by U.S. Court of Appeals, supra; Industrial Commission v. Golden Cycle Corp., supra. We presume that the ALJ considered the evidence and arguments presented by the respondent, but found such evidence and arguments to be unpersuasive. See Dravo Corp v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977).
IT IS THEREFORE ORDERED that the ALJ's order dated April 14, 2011, and mailed on April 15, 2011, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Kris Sanko
KRISII GEIST, 5518 LITTLETON, CO, (Claimant).
LIBERTY MUTUAL GROUP, Attn: MARGARET RODRIGUEZ, IRVING, TX, (Employer).
BISSET LAW FIRM, Attn: JENNIFER E. BISSET, ESQ., ENGLEWOOD, CO, (For Claimant).
LEE KINDER, LLC, Attn: TIFFANY SCULLY KINDER, ESQ., E. FLORIDA AVE., DENVER, CO, (For Respondents).