Opinion
W.C. Nos. 4-616-895, 4-616-910.
July 3, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Connick (ALJ) dated February 16, 2007, that denied her claim for benefits. We affirm.
This matter was before us previously. We determined that additional findings were required concerning the claimant's fall, which was the basis for the claim for benefits. On remand the ALJ made findings concerning the claimant's various explanations of her fall from stairs at work. Several of the ALJ's findings are summarized as follows. The claimant used the stairs in the office building where she worked. She was found at the bottom of four carpeted stairs. She indicated on her claim for compensation that she tripped and fell. On the date of the fall, May 19, 2004, the claimant told a physician that she fell about four stairs after feeling very light-headed. The following month she informed another physician that as she walked down the stairs, she "started tobling" about eight steps and was unconscious. A physical therapy evaluation performed on August 2, 2004, indicated that the claimant described going down a flight of stairs when she missed a step and fell down ten steps. Findings of Fact, Conclusions of Law, and Order (Order) at 2, ¶ 4.
The claimant had no previous difficulty negotiating the stairs and had no previous fainting spells or unexplained falls. The ALJ described these various accounts of the claimant's fall as conflicting and found none of the explanations to be credible. The ALJ found that the claimant did not know why she fell. The ALJ did not find any special hazard associated with the stairs, which she described as ubiquitous. The ALJ concluded that the claimant's fall at work was unexplained and that the claimant had therefore failed to establish that her fall and subsequent injuries arose out of her employment and denied her claim for benefits.
On appeal the claimant does not assert that her fall at work was caused by an idiopathic condition related to a special hazard at work. See Ramsdell v. Horn, 781 P.2d 150 (Colo.App. 1989) (injury from fall due to pre-existing idiopathic disease or condition and special hazard at work, such as epileptic seizure resulting in fall from scaffolding, compensable). Instead, she argues that she explained how and when she sustained her injuries, which is to say she fell from stairs at work and sustained various documented physical and psychological injuries. In support of her contention, the claimant asserts that the Colorado Supreme Court has excluded from compensation only completely unexplained injuries, whereas she established a "direct causal relationship between her employment and her injury." Claimant's Brief at 3. The claimant refers us to the case of Finn v. Industrial Commission, 165 Colo. 106, 437 P.2d 542 (1968), in which the supreme court upheld the denial of benefits to a claimant who "was found lying unconscious on the floor of his place of employment with blood running from his ears." Finn, 165 Colo. at 107, 437 P.2d at 543. In Finn, the trier of fact deduced that "some `mysterious innerbody malfunction,'" rather than the claimant's proffered explanation of a collision with a forklift, initiated the claimant's injury.
Finn, 165 Colo. at 108, 437 P.2d at 543. In Finn the claimant was unable at hearing to establish how or when he received his skull fracture and argued that an unexplained injury occurring in the course of employment was presumed to arise out of that employment. The supreme court disagreed and concluded that the claimant failed to establish a compensable claim when he could not establish how or when he was injured.
It is true that the claimant may have established that her initial injuries related to her fall at her workplace. However, the ALJ found, with record support, that the claimant did not establish the mechanics and the cause of her fall. Whether there is a sufficient "nexus" or causal relationship between the claimant's employment and the injury is 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). In our view, the claimant's failure to establish causation results in what we have described as "a `truly unexplained fall'" and a corresponding denial of benefits. Rice v. Dayton Hudson Corp., W.C. No. 4-386-678 (July 29, 1999).
The claimant also asserts that to the extent that Finn supports this result, it should be overruled. Although our supreme court is not bound by our interpretation of the Workers' Compensation Act, Lobato v. Industrial Claim Appeals Office, 105 P.3d 220, 223 (Colo. 2005), we, of course, are bound by the opinions of the Colorado Supreme Court. Colo. Const. art. VI, § 2( 2); § 8-43-313, C.R.S. 2006. We presume that the claimant is merely preserving this argument in the event she pursues a further appeal.
The claimant also argues that the positional risk doctrine supports her claim for compensation. The positional risk doctrine applies when the duties of the claimant's employment place her at a time and location where she is injured by a "neutral force." The claimant refers us to the case of Industrial Commission v. London Lancashire Indem. Co., 135 Colo. 372, 311 P.2d 705 (1957). In that case, the decedent's dependents were denied benefits where the deceased worker's body was found below an open window on the fourth floor of the employer's premises. In passing, the supreme court noted that an injury "arises out of the employment even though the risk or hazard is external to the employment, where the employment or the conditions under which the work is performed cause exposure to the risk." London Lancashire Indem., 135 Colo. at 374, 311 P.2d at 706. However, we do not read that language as requiring a finding of compensability here. The positional risk doctrine is generally applied where the injury resulted from exposure to a neutral force, and we do not disagree with the ALJ's conclusion that the stairs here were did not constitute a neutral force. We are not persuaded that the dicta in London Lancashire Indem. Co. compels an award of benefits under the positional risk doctrine.
As noted in Rice, an injury may be compensable if it originates from a neutral force that is neither personal to the claimant nor distinctly associated with her employment. Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991); In re Question Submitted by the United States Court of Appeals for the Tenth Circuit, supra. However, the ALJ found no such neutral force, "such as a lightening bolt or stray bullet," at work in this case. Rice, supra. Although the claimant seeks to characterize the stairs at work as a neutral force, the ALJ described the stairs as "ubiquitous." Order at 3, ¶ 6. Moreover, the positional risk doctrine is most often applied to assault cases, and to injuries which resulted from stray bullets, roving lunatics, drunks, assaults by mistake and completely unexplained attacks. In Re Questions Submitted by the U.S. Court of Appeals, 759 P.2d 17. In such circumstances, the force is neutral because any person then and there present would have been assaulted. In Re Questions Submitted by U.S. Court of Appeals, 759 P.2d at 22. The stairs in this case do not constitute any such influence that is essentially external to the claimant's employment.
The claimant further asserts that she is entitled to benefits because she was in "travel status" at the time of her accident. An injury arises out of and in the course of employment when there is a sufficient "nexus" between the activity which caused the injury and the usual circumstances of the job, so that the activity maybe considered an incident of employment. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). The general rule is that injuries sustained "going to and coming from" work are not compensable. Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2 (1967); Perry v. Crawford Co., 677 P.2d 416 (Colo.App. 1983). However, there is an exception when "special circumstances" create a causal relationship between the employment and the travel beyond the sole fact of the employee's arrival at work. Madden v. Mountain West Fabricators, 977 P.2d 861, 864 (Colo. 1999); Staff Administrators Inc., v. Reynolds, 977 P.2d 866 (Colo. 1999); Monolith Portland Cement v Burak, 772 P.2d 688 (Colo. 1989). However, we agree with the respondents that the claimant failed to raise this assertion before the ALJ. The claimant's position statement merely states that the claimant "traveled between floors and buildings." Claimant's Position Statement at 5. We therefore decline to consider this argument for the first time on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
We have considered the claimant's remaining arguments, but they have not persuaded us to disturb the ALJ's decision.
IT IS THEREFORE ORDERED that that the ALJ's order dated February 16, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________________ John D. Baird
_______________________________ Curt Kriksciun
Elsa Ismael, 4175 S. Lewiston Circle Aurora, CO, Nextel Communications Kathy Killer, Englewood, CO, Zurich American Insurance Company, Michael Fallis, Kansas City, MO, Janice Greening, Esq., Englewood, CO, (For Claimant).
Kitch Associates, Michelle L. Prince, Esq., Evergreen, CO, (For Respondents).