Opinion
W.C. No. 4-488-778
February 14, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Felter (ALJ) which determined the claimant suffered a compensable injury and awarded medical benefits. We affirm.
The pertinent facts are undisputed. On January 15, 2001, the claimant took a scheduled break from his employment in the area designated by the employer for employee breaks. At the conclusion of the break, the claimant attempted to throw an empty plastic pop bottle into a trash can but missed. As he bent over to pick up the pop bottle to put in the trash can he experienced immediate pain in his low back, radiating into his right hip. He was subsequently diagnosed with a protruding disc at L4-5 and mechanical low back pain with bilateral leg radiation.
The ALJ found the January 15 incident either caused the claimant's back condition or "substantially aggravated a pre-existing back condition." Further, the ALJ found that picking up the pop bottle from the floor of the employee break room was a service to the employer. Under these circumstances, the ALJ determined the claimant sustained his burden to prove he suffered a back injury arising out of and in the course of the employment.
The respondents concede the claimant was in the "course of" employment at the time of the bending incident. However, they contend the ALJ erred as a matter of law in finding the claimant suffered an injury "arising out of" the employment. The respondents contend the act of bending is an activity of daily living unrelated to the claimant's job functions. They also contend that compensability is not measured by whether the actions which caused the alleged injury conferred a benefit on the employer. We reject these arguments.
An injury is compensable if it "arises out of" and occurs "in the course of" employment. Section 8-41-301 C.R.S. 2001; Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996). The "course of employment" requirement is satisfied when it is shown the injury occurred within the time and place limits of the employment relationship. However, the "arising out of" requirement is narrower than the course of employment, and is a test of causation which 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. Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991).
There is no requirement that the activity giving rise to the injury be a strict duty or obligation of employment, nor that the activity confer a specific benefit on the employer, for the injury to arise out of the employment. Price v. Industrial Claim Appeals Office, supra; City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). It is sufficient if the injury arises out of a risk which is reasonably incidental to the conditions and circumstances of the particular employment. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995). This includes discretionary activities on the part of the employee. City of Boulder v. Streeb, supra; L.E.L. Construction v. Goode, 849 P.2d 876 (Colo.App. 1992), rev'd on other grounds 867 P.2d 875 (Colo. 1994) (claimant sustained fatal compensable injuries while traveling between the job site and the employer's main office to pick up a paycheck). In fact, activities such as resting, toileting, seeking fresh air, and getting a drink of water are considered incidental to employment under the "personal comfort doctrine." See University of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953); Wallace v. Personnel Pool Inc., W.C. No. 4-455-463 (May 8, 2001) (upholding compensability of knee injury sustained during an authorized break in the designated smoking area when claimant vaulted over a railing and garbage can).
Further, a compensable injury may result from an unexpected, unusual, or undesigned occurrence or stemming from an employee's normal work activities. Section 8-40-201(1), C.R.S. 2001; Industrial Commission v. Cutshall 164 Colo. 240, 433 P.2d 765 (1967). For example, in Reinhard v. Pikes Peak Broadcasting Co. Inc., W.C. No. 4-114-050 (May 20, 1993), the claimant experienced a back strain while walking down a flight of stairs at the employer's premises. Because the evidence indicated the injury occurred while the claimant was going to a room where his work assignments were posted, we upheld an ALJ's finding that the injury had its origin in a distinctly work-related activity.
The determination of 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); Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996). We must uphold the ALJ's determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. Under this standard, we are bound by the ALJ's plausible inferences from the record. See Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998).
Furthermore, the ALJ is not held to a crystalline standard in articulating the basis for his order. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). Rather, the ALJ's findings are sufficient if the basis of the order is apparent from the order. Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990).
Here, it is undisputed the employer allowed employees to take scheduled breaks from work and provided a specific room where employees could sit and relax. It is also apparent the employer allowed employees to consume beverages in the break room and provided a garbage can for any refuse generated during the break. Under these circumstances, the ALJ could reasonably infer that bending over to pick up trash benefitted the employer and thus, was incidental to the claimant's service to the employer.
Next, the respondents contend the ALJ erroneously failed to consider the "special hazards doctrine." The respondents argue that because the ALJ found the claimant's injury may have been caused by a compensable aggravation of a pre-existing condition, the claimant was required to prove the injury was the result of a "special hazard" of the employment. Again we disagree.
The special hazard doctrine applies where the injury is precipitated by a pre-existing nonindustrial condition, such as a syncopal episode or epilepsy. National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 763 (Colo.App. 1992). The rationale for this rule is that unless a special hazard of employment increases the risk or extent of injury, an injury precipitated by the claimant's pre-existing condition does not bear a sufficient causal relationship to the employment to "arise out of" the employment. Gates Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo.App. 1985). In Gates Rubber Co. v. Industrial Commission, supra, the court held that a claimant who was injured by falling onto a concrete floor after an idiopathic seizure did not suffer a compensable injury in the absence of proof that the concrete surface was a special risk of the employment. However, there is no need to show a special hazard if the fall is precipitated by the circumstances or conditions of the employment. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
Although the ALJ found the injury may have been due to a compensable aggravation of a pre-existing condition, he did not find the injury was precipitated by the preexisting condition. Rather, the ALJ determined the claimant's condition was fairly traced to physical stress casued by the act of bending to pick up the can. ( See Finding of Fact 7; Tr. p. 42). Consequently, the ALJ was not required to determine whether the claimant proved a "special hazard."
Finally, the respondents contend the evidence is insufficient to support the ALJ's finding that the January 15 incident was the proximate cause of the claimant's subsequent low back pain. In support, the respondents point out the absence of medical evidence linking the claimant's protruding disc to the January 15 incident. They also rely on evidence the claimant had a history of chiropractic adjustments to the lumbosacral spine.
There is no requirement the claimant present medical evidence to prove he suffered a compensable injury. However, insofar as medical evidence is presented, it is the ALJ's sole prerogative to assess its sufficiency and probative weight. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Moreover, causation may be established entirely through circumstantial evidence. Peter Kiewit Sons' Co. v. Industrial Commission, 124 Colo. 217, 236 P.2d 296 (1951).
The record is subject to conflicting inferences on the cause of the claimant's protruding disc. However, the medical records of Dr. Overturf and Dr. Consentino reveal a history of low back pain beginning immediately after the incident on January 15. Furthermore, the claimant testified that he did not have low back pain prior to January 15, and that he had no medical restrictions until after the January 15 incident. (Tr. p. 26). The claimant also stated that the prior chiropractic adjustments were obtained to treat a jammed neck and shoulder. (Tr. p. 16). Therefore, the record contains substantial evidence from which the ALJ could reasonably infer there was a causal connection between the January 15 incident and the claimant's subsequent need for low back treatment. See Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996) (ALJ findings may be plausible inferences from circumstantial evidence).
The respondents further arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated September 11, 2001, is affirmed.
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David Cain
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Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed February 14, 2002 to the following parties:
Rick Lehr, 311 Karen St., Wiggins, CO 80645
John Holdren and Gina Bender, Town of Wiggins, 304 Central Ave., Wiggins, CO 80654-8933
Marla Myers, CIRSA, 3665 Cherry Creek Drive North, Denver, CO 80209
Shawn P. Langley, Esq., 1115 11th Ave., Greeley, CO 80631 (For Claimant)
Margaret Keck, Esq. and Derek Regensburger, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy