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In re Claim of Rodriguez v. City of Brighton, W.C. No

Industrial Claim Appeals Office
Aug 23, 2011
W.C. No. 4-782-516 (Colo. Ind. App. Aug. 23, 2011)

Opinion

W.C. No. 4-782-516.

August 23, 2011.


FINAL ORDER

The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated March 16, 2011. The order permitted the insurer to withdraw its General Admission of Liability and denied and dismissed the claim for compensation. We affirm.

The claimant works as an event coordinator for the employer. On January 8, 2009, the claimant was headed to her office from the parking lot at the employer's offices in City Hall. To gain access to her office, the claimant was required to descend a flight of stairs on the outside of City Hall. On her way into work, the claimant paused at the top of the stairs to converse with co-workers. After conversing the claimant began to go down the stairs. The claimant does not remember what occurred and only recalls being face down at the bottom of the stairs.

The claimant was taken to an emergency room and underwent a CT scan and an MRA that revealed the presence of aneurysms. The aneurysms had not been ruptured by the claimant's fall and she underwent surgery for the aneurysms. The ALJ resolved conflicts in the opinions of medical experts and was persuaded that the aneurysms were asymptomatic. Further, the ALJ found that the claimant's fall on January 8, 2009 was not caused or precipitated by dizziness or a syncopal episode related to the aneurysms.

The ALJ found that the claimant had sustained an unexplained fall at work on January 8, 2009. Therefore, the ALJ permitted the respondents to withdraw its General Admission of Liability and denied and dismissed all claims for compensation and benefits.

I.

The claimant first contends that the ALJ improperly placed the burden of proving compensability on the claimant, rather than applying § 8-43-201, C.R.S. to require the respondents to prove why they should be allowed to withdraw their admission of liability. We are not persuaded that the ALJ erred in placing the burden of proof

Section 8-43-201 C.R.S. deals with disputes arising under the Workers' Compensation Act of Colorado. It provides that a claimant in a workers' compensation claim shall have the burden of proving entitlement to benefits by a preponderance of the evidence. However, the statute also provides that a party seeking to modify an issue determined by a general or final admission shall have the burden of proof for any such modification.

We note that the modification provision of § 8-43-201 was enacted in 2009. Prior to that time, case law construing § 8-43-203(2)(d), C.R.S. permitted respondents to receive relief from improvidently filed admissions. In relevant part, § 8-43-203(2)(d) provides that if liability is admitted, payments shall continue according to admitted liability.) However, an admission was considered binding only until the controverted issue was determined after the hearing. Further, once compensability was controverted by either party, the claimant bore the burden of proving entitlement to benefits. See Pacesetter Corp. v. Collett, 33 P.3d 1230 (Colo. App. 2001) (employer did not have to show why its general admission of liability as to claimant's injuries was improvidently filed in order to contest liability in workers' compensation action); HLJ Management Group, Inc. v. Kim, 804 P.2d 250 (Colo. App. 1990) (general admission does not vitiate respondents' right to litigate disputed issues on a prospective basis).

However, the ALJ noted that the respondents sought to modify the issue of compensability which had been determined by the general admission filed by the insurer. The ALJ specifically determined that under § 8-43-201, the respondents bore the burden of proof by a preponderance of the evidence to show that the claimant did not sustain a compensable injury on January 8, 2009. The ALJ found that the claimant sustained an unexplained fall at work on January 8, 2009 and observed that a truly unexplained fall is not compensable. The ALJ determined that the respondents had met their burden of proof to show the claimant did not sustain a compensable injury, and therefore, should be allowed to withdraw its general admission. In our view, the ALJ properly imposed the burden of proof upon the respondents as the party seeking to modify that admission.

II.

The claimant next contends that the ALJ failed to analyze and apply the positional risk doctrine in determining whether or not the claimant's fall was compensable. The claimant argues that the ALJ inserted a negligence requirement into the Workers' Compensation Act by requiring the claimant to prove that something actually caused her to fall. Using the positional-risk doctrine, the claimant argues that she fell as a result of being at her place of employment at the top of the stairs which anyone at that place would have encountered.

The positional risk analysis is applicable when the cause of an event is neither personal to the claimant nor distinctly associated with employment. In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17 (Colo. 1988). This doctrine has been applied to situations where stray bullets, rapists, and mentally deranged persons have caused injuries to random employees while at work. See H H Warehouse v. Vicory 805 P.2d 1167 (Colo. App. 1990). Under such circumstances, the only connection between the employment and the injury is that the obligations of work placed the employee in a particular place at a particular time when injured by some "neutral force." "Neutral force" means one that is neither personal to the claimant nor distinctly associated with the employment. In re Question Submitted by U.S. Court of Appeals, supra; Patel v. Thomas, 793 P.2d 632 (Colo. App. 1990); H H Warehouse v. Vicory, supra. When a force truly is neutral, it follows that the injury would have occurred to anyone else present at the same time and place.

Here, we understand the claimant's position to be that the line of cases involving unexplained falls are in contradiction to the case law employing the positional risk analysis. We are, of course, bound by the published opinions of the Supreme Court of Colorado and the Colorado Court of Appeals. Therefore, looking to the cases involving unexplained falls, we are instructed that there is no presumption that an employee injured at her place of employment sustained an injury arising out of that employment. Rather, a direct causal relationship must be established between the claimant's employment and her injury. Finn v. Industrial Comm'n, 165 Colo. 106, 109, 437 P.2d 542, 544 (1968).

In Finn, the claimant was found unconscious and injured, lying on the floor of his workplace. There was blood running from his ears, his skull was fractured, he had head abrasions and bruises, his eyes were blackened, and his forearms were bruised. Finn, 165 Colo. at 107-08, 437 P.2d at 543. He did not know what had happened to him and there were no witnesses to the circumstances of his unconsciousness or injuries. Although the claimant believed he had been struck by a forklift, the circumstantial evidence was not sufficient to determine what had caused his injuries, and the ALJ found that the "onset" of the injury was triggered by a "mysterious innerbody malfunction," not by a work-related function of his employment. Id, 165 Colo. at 108, 437 P.2d at 543. The Supreme Court affirmed, explaining that the claimant had failed to show how or when he received the fracture and the Industrial Commission did not draw any inference to supply a causal connection.

In Irwin v. Industrial Commission, 695 P.2d 763, 766, (Colo. App. 1984), the claimant fainted and fell to the floor at her workplace. The Panel concluded, and the Court agreed, that there was not sufficient evidence to prove that the fall arose out of and in the course of employment. Additionally, there is a long line of Panel decisions determining that truly unexplained falls at the workplace are not compensable. See, e.g., 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); Ybarra v. Thompson School District RJ-2 W.C. No. 4-777-145 (September 25, 2009) aff'd Ybarra v. Industrial Claim Appeals Office No. 09CA2222 (Colo. App. August 5, 2010) (not selected for publication). We are not persuaded to depart from those cases.

The claimant next contends that her fall was not truly unexplained because she presented several explanations as to how her accident may have occurred. 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, 907 P.2d 715 (Colo. App. 1995). The ALJ's determination must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998). 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, 415 (Colo. App. 1995).

Here, the ALJ was not bound to accept the claimant's explanations. The existence of evidence which, if credited, might support a determination contrary to that reached by the ALJ does not afford us grounds to grant appellate relief. Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d. 28 (1963). The ALJ found with record support that the claimant did not know what caused her fall, and the testimony of her co-workers did not establish that any condition of the stairs caused or contributed to the claimant's fall. Tr. at 26, 39, 85-86. In our view, the testimony of the claimant and of her co-workers constitutes substantial evidence supporting the ALJ's determination and therefore is binding on us. Section 8-43-301(8).

III.

The claimant next contends that the ALJ erred in failing to order the respondents to reimburse the claimant for payment to an authorized treating physician for his report regarding the causation issue addressed at the hearing. We disagree.

The claimant was referred to Dr. Feldman, a neurologist, for evaluation. The claimant contends that she forwarded medical records from her family physician to Dr. Feldman, and requested that he issue an opinion on whether or not the medical care and treatment he was recommending was related to her January 8, 2009 fall. Dr. Feldman stated that, in his experience, a small brain aneurysm if not unruptured is usually asymptomatic and does not cause headache, dysbalance, dizziness or cognitive dysfunction. The ALJ did not address the claim for payment of Dr. Feldman's fee for preparation of a narrative medical report because he concluded that the respondents had proven that the claimant did not sustain a compensable injury.

In general, if the ALJ determines that a claimant did not sustain a compensable injury, the insurer is not responsible for payment of related medical bills. See Morey Mercantile Co. v. Flynt, 97 Colo 163, 47 P.2d 864 (1935). However, the claimant maintains that the respondents are obligated to pay for the costs associated with the review of previous medical records and the preparation of Dr. Feldman's report because they are bound by the admission of liability they filed until the issuance of the ALJ's order. The claimant cites Leyba v. Martin K. Eby Construction (W.C. 3-741-900) (August 13, 1990) and Meza v. BMC West Corp. W.C. No. 4-651-065 (January 3, 2007) for this proposition. These cases generally acknowledge the rule that an admission is binding until the controverted issue, including an improvident or erroneous admission, is determined after a hearing. See HLJ Management Group, Inc. v. Kim, supra.

We agree under this authority that the respondents, until entry of the ALJ's order, would remain liable for reasonable and necessary medical treatment "to cure and relieve the employee from the effects of the injury." See § 8-42-101(1)(a), C.R.S.; Owens v. Industrial Claim Appeals Office, 49 P.3d 1187, 1188 (Colo. App. 2002). However, in our view this requirement does not extend to the respondents' liability for a fee to prepare a report designed to resolve an evidentiary issue at hearing.

The respondents argue that there is a distinction for a billed service for medical treatment pursuant to W.C. Rule of Procedure 16-11, 7 Code Colo. Reg. 1101-3, and a bill for a special report under W.C. Rule of Procedure 18-6(G)(4), 7 Code Colo. Reg. 1101-3. We agree.

Rule of Procedure 16-11, is a lengthy rule contained in the Utilization Standards. The Utilization Standards were prepared by the Director of the Division of Workers' Compensation (Director) to comply with the legislative charge to assure appropriate and timely medical care at a reasonable cost. Rule 16-11 deals with the payment of medical benefits and provides specifications for reimbursement for medical service bills submitted by providers.

In contrast, Rule of Procedure 18-6(G)(4) is found within the Medical Fee Schedule, which was established by the Director to establish maximum allowable fees. Rule 18-6(G)(4) deals with the issue of "special reports." Rule 18-6(G)(4) describes special reports as including reports of any form including questionnaires or letters with variable content. Rule 18-6(G)(4) provides that special reports includes independent medical evaluations or reviews performed by treating or non-treating medical reviewers or evaluators producing written reports pertaining to injured workers. Rule 18-6(G)(4) provides that reimbursement for preparation of special reports or records shall require prior agreement with the requesting party.

The principles governing the interpretation of administrative regulations are the same as those concerning statutes. Gerrity Oil and Gas Corp. v. Magness, 923 P.2d 261 (Colo. App. 1995), aff'd in part, rev'd. in part on other grounds, 946 P.2d 913 (Colo. 1997). Thus, the overall objective is to interpret the rules in a manner which effects the Director's intent. Ray v. New World Van, W. C. No. 4-520-251(October 12, 2004). Because the language used is the best indicator of intent, the rules should be given their plain and ordinary meanings unless the result is absurd. Further, the rules should be read to give a consistent, harmonious and sensible effect to all their parts. Spracklin v. Industrial Claim Appeals Office, 66 P.3d 176 (Colo. App. 2002).

Because the best indicator of legislative intent is the language of the statute, words and phrases in a statute should be given their plain and ordinary meanings, and phrases should be read in context and construed according to the rules of grammar and common usage. Section 2-4-101, C.R.S. 2008; Weld County School District RE-12 v. Bymer, 955 P.2d 550 (Colo. 1998). Statutory language should not be construed in a manner which produces an absurd result. Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo. App. 2001).

In our view, the plain and ordinary meanings of the language used in the rules reveals that the Director has drawn a distinction between medical expenses incurred for medical treatment of a claimant and medical expenses incurred in obtaining evidence in support of or opposition to a claim for compensation. The Director has provided in Rule 18-6(G)(4) that responsibility for payment involving preparation of a special report obtained on an evidentiary issue lies with the requesting party. Here, the medical report in question was prepared after review of medical records forwarded by the claimant's attorney requesting an opinion regarding whether medical care and treatment was related to the claimant's January 8, 2009 fall. In our view, the report was prepared for the purpose of obtaining medical evidence and falls within the purview of Rule 18-6(G)(4). As the claimant was the requestor, the claimant is liable for payment of the cost of producing the written report. This result is consistent with the general rule that expenses to obtain medical evidence in support of the claim cannot be charged to the employer under a statute such as § 8-42-101(1)(a), which concerns the employer's obligation to furnish reasonable and necessary medical treatment to cure and relieve the employee from the effects of the injury. See Larson's Workers' Compensation Law § 134.01.

The claimant's remaining arguments are not persuasive.

IT IS THEREFORE ORDERED that the ALJ's order dated March 16, 2011 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Dona Rhodes

HELEN M RODRIGUEZ, 315 N. 7TH AVENUE, BRIGHTON, CO, (Claimant).

CITY OF BRIGHTON, Attn: BERNADETTE KIMMEY, BRIGHTON, CO, (Employer).

CIRSA, Attn: PATRICIA MORGAN, DENVER, CO, (Insurer).

THE FRICKEY LAW FIRM, Attn: JANET L. FRICKEY, ESQ., LAKEWOOD, CO, (For Claimant).

RITSEMA LYON, PC, Attn: KELLY F. KRUEGEL, ESQ., DENVER, CO, (For Respondents).


Summaries of

In re Claim of Rodriguez v. City of Brighton, W.C. No

Industrial Claim Appeals Office
Aug 23, 2011
W.C. No. 4-782-516 (Colo. Ind. App. Aug. 23, 2011)
Case details for

In re Claim of Rodriguez v. City of Brighton, W.C. No

Case Details

Full title:IN THE MATTER OF THE CLAIM OF HELEN M. RODRIGUEZ, Claimant, v. CITY OF…

Court:Industrial Claim Appeals Office

Date published: Aug 23, 2011

Citations

W.C. No. 4-782-516 (Colo. Ind. App. Aug. 23, 2011)