Opinion
W.C. No. 4-820-016.
March 2, 2011.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Mottram (ALJ) dated November 2, 2010, that determined the claimant sustained a compensable injury and awarded benefits. We set the order aside and remand for entry of a new order.
The claimant worked for the employer on oil and gas rigs in Colorado. On February 10, 2010 the claimant and a co-worker put a tote that holds gallons of acid and water on his truck and drove to a work site to pump the acid from the tote to a pumper truck. While the acid was pumping the claimant crawled on his knees a few steps to a barrel and pulled himself up. As the claimant was standing up he felt his knee pop and felt immediate pain in his left knee.
It was essentially agreed that the claimant suffered an injury to his knee on February 10, 2010. However the respondents maintained that the knee injury was idiopathic in nature because the injury was caused by the claimant's osteoarthritis and morbid obesity that were particular to the claimant and not related to his employment The respondents also maintained that the act the claimant was engaged in at the time of his injury, arising to his feet, was not a special hazard of employment. Conversely, the claimant argued that getting up from a kneeling position was not a daily activity that he performed away from work and that he could not recall the last time he got up from a full kneeling position.
The ALJ found that the claimant's injury occurred while in the act of going from a seated position on the back of the truck and then standing up. The ALJ credited the claimant's testimony that he did not, outside of work, go from a kneeling position to a standing position and found that this act represented a special hazard of his employment sufficient to make the claim compensable. The ALJ found that the claimant had proven that he suffered an injury arising out of and in the course of his employment when he suffered a knee injury while arising from the kneeling position to the standing position and therefore awarded certain benefits.
The respondents first contend that the ALJ erred by finding that a movement, the act of going from a kneeling position to a standing position, represented a "special hazard" of employment sufficient to make the claimant's claim compensable. The respondents next contend that the ALJ erred by finding that the act of going from a kneeling position to a standing position represented a special hazard of employment because the claimant did not generally encounter it outside of his employment.
The respondents direct us to the recognized case law holding that where the precipitating cause of an injury is a pre-existing condition which the claimant brings to the workplace, 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. The respondents argue that while the case law recognizes working at height or crossing train tracks are special hazards of employment the ALJ misapplied the law when he found that the movement of going from the kneeling" position to the standing position represented a special hazard of employment. The respondents contend that the ALJ's order determining the claimant sustained a compensable injury must be reversed. We do not agree that the order should be-reversed. However, in bur opinion a remand is necessary.
In our view, the respondents' reliance on Scully v. Hooters of Colorado: W.C. No. 4-745-712' (October 27, 2008) for the proposition that the order must be reversed is misplaced. In Scully the claimant twisted to place dishes then felt air immediate onset of low back pain and spasms. The claimant had serious and chronic pre-existing low back problems. The ALJ determined that the claimant did not suffer a new injury but merely experienced continuing symptoms from her chronic pre-existing condition. In Scully the claimant contended 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. The Panel found that this argument committed the logical fallacy of mistaking temporal proximity for a causal relationship. The Panel noted that correlation is not causation and in Scully the ALJ essentially concluded that there merely existed a coincidental correlation between the claimant's work and her symptoms. In Scully 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 pre-existing condition was the direct cause of the injury. Because the ALJ's conclusion was supported by the record the Panel affirmed the ALJ's denial of the case. In contrast, here we do not read the ALJ's order as having found that the claimant merely experienced continuing symptoms from her chronic pre-existing condition. However, we additionally do not read the ALJ's order as determining that the incident occurring on February 10, 2010 aggravated the claimant's pre-existing condition.
A claimant bears the burden of establishing that his claim is compensable by a preponderance of the evidence. § 8-43-201, C.R.S. A claim is compensable if it is shown that the injury was proximately caused by an injury arising out of and in the course of the employee's employment. Section-8-41-30l(l)(c), C.R.S. To establish that an injury arose out of an employee's 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 W. Fabricators, 977 P.2d 861, 863 (Colo. 1999).
A pre-existing condition "does not disqualify a claimant from receiving workers' compensation benefits." Duncan v. Industrial Claim Appeals Office, 107 P.3d 999, 1001 (Colo. App. 2004). A claimant may be compensated if his or her employment "aggravates, accelerates, or combines with" a worker/s pre-existing infirmity or disease "to produce the disability for which workers' compensation is sought." H H Warehouse v. Vicory, 805 P.2d I 167. 1169 (Colo. App. 1990). Moreover, an otherwise compensable injury does not cease to arise out of a worker's employment simply because it is partially attributable to the worker's pre-existing condition. See Subsequent Injury Fund v. Thompson 793 P.2d 576, 579 (Colo. 1990); Seifried v. Industrial Comm'n 736 P.2d 1262, 1263 (Colo. App, 1986) ("[I]f a disability were [ninety-five percent] attributable to a pre-existing, but stable, condition and [five-percent] attributable to an occupational injury, the resulting, disability is still compensable if the injury has caused the dormant condition to become disabling.")
In contrast, if a pre-existing condition is the-precipitating cause of an injury that occurs in the workplace "the resulting disability is compensable if the conditions or circumstances of employment have contributed to the accident or to the injuries sustained by the employee." Nat'l Health Labs. v. Industrial Claim Appeals Office, 844 P.2d 1259, 1260-61 (Colo. App. 1992) (holding that a worker's epileptic seizure while driving was compensable where the worker was required to operate automobile in the course and scope of her employment because "vehicular travel constitutes a special hazard").
Here, the ALJ found that the act of going from a kneeling position to a standing potion represented a special hazard of the claimant's employment sufficient to make the claimant's claim compensable. However, in our view, the use of the "special hazard" analysis was incorrect. A "special hazard" of employment is one which increases either the risk of injury or the severity of injury when combined with the pre-existing condition, which is the direct or precipitating cause of the injury. See 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). We do not understand the present case to be one in which a pre-existing condition or conditions, osteoarthritis or morbid obesity, was the direct cause of February 10, 2010 accident and where the work arguably created a special hazard which increased the risk of injury or the severity of injury. Rather, in our view, the issue is whether the claimant, suffered an industrial aggravation of a pre-existing condition or merely experienced the natural progression of the pre-existing condition on February 10, 2010. When a claimant experiences symptoms while at work it is for the ALJ to determine whether the subsequent need-for treatment was caused by an industrial aggravation of pre-existing condition or by the natural progression the pre-existing condition. The mere experience bf symptoms at work does not necessarily require a finding that the employment aggravated or accelerated the pre-existing condition. Resolution of that issuers also one of fact for the ALJ. F.R. Orr Construction v. Rinta, 717 P.2d .965 (Colo, App. 1985).
Here, the claimant urges that the ALJ properly found that the claimant suffered a knee injury on February 10, 2010 and that his duties of employment directly precipitated or combined with a pre-existing condition to precipitate the injury. However, we do not read the ALJ's order as making such a finding and we cannot serve as finders of fact, but must defer to the ALJ. We, also do not read the ALJY, order as determining that the claimant's right knee condition following the February 10, 2010 incident was the natural progression of a pre-existing condition.
The; "findings of fact, could support either the, conclusion "that the act of moving from a kneeling position to a standing position aggravated the claimant's pre-existing condition and was the precipitating cause of the February 10, 2010 injury or that the natural deterioration of the claimant's pre-existing injury was the precipitating cause. In the absence of findings, addressing the issue of whether suffered an industrial aggravation of a pre-existing condition or experienced the natural progression of a pre-existing condition the case must be, remanded for consideration of and resolution of that issue. Therefore, the matter is remanded with instruction to enter additional findings clarifying the precipitating cause of the claimant's injury.
IT IS THEREFORE ORDERED that the ALJ's order dated November 2, 2010 is set aside, and the matter is remanded for further proceedings and entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
GARY SHAFFSTALL, CLIFTON, CO, (Claimant).
CHAMPION TECHNOLOGIES, Attn: DAN LEITHAUSER, MANAGER, RIFLE, CO, (Employer).
ACE AMERICAN INSURANCE COMPANY, Attn. PAIGE STEEVES, C/O ESIS, TAMPA, FL, (Insurer).
WITHERS, SEIDMAN, RICE MUELLER, Attn "CHRISTOPHER SEIDMAN, ESQ., GRAND JUNCTION, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, P.C, Attn JAMES R CLIFTON, ESQ., GRAND JUNCTION, CO, (For Respondents).