Opinion
W.C. No. 4-373-180
October 2, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) which determined the claimant suffered a compensable injury and awarded workers' compensation benefits. We affirm.
On December 24, 1997, the claimant was employed as a credit specialist at the Montgomery Ward store (store) in the Pueblo Mall (Mall). The claimant suffered disabling injuries to her back when she fell in the Mall during a fifteen minute break from work.
The respondent-employer's personnel rules provided for a fifteen minute break after four hours of work. Employees were permitted to take their breaks when the store was "not busy," without asking for permission. The store manager and other employees commonly took their breaks in the Mall.
In support of her determination that the claimant suffered a compensable injury, the ALJ found the claimant was paid during the break. The ALJ also found the claimant's break was of short duration, the claimant was injured while returning to the store and the claimant's employment activities were virtually uninterrupted. Further, the ALJ determined the claimant took her break "at the least busiest period during her work period." (Finding of Fact 3). Under these circumstances, the ALJ determined the claimant's activities did not constitute a substantial deviation from the claimant's employment.
On review the respondents contend the ALJ failed to resolve material conflicts in the evidence concerning whether the store was busy at the time of the claimant's break. The respondents argue that according to the personnel rule, the claimant's break was only authorized if taken when the store was "not busy." Consequently, they contend that the ALJ's finding the claimant took her break during the "least busiest" time of her shift does not resolve the issue of whether the store was, in fact, "not busy." We disagree.
Initially, we note that the respondents' Designation of Record includes the "entire Division of Workers' Compensation file." The record transmitted to us on appeal apparently does not include the complete Division of Workers' Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the respondents requested the ALJ to consider the entire Division of Workers' Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers' Compensation file, but restricted our review to the record made at the hearing.
A compensable injury is one which arises out of and in the course of employment. Section 8-41-301(1)(b), C.R.S. 2000. The "arising out of" test is one of causation and 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. 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. 2000. 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).
In Roache v. Industrial Commission, 729 P.2d 991 (Colo.App. 1986), the Court of Appeals held that a claimant's off-premises injuries sustained during an authorized "sustenance break" did not constitute a deviation from employment so substantial as to remove it from the employment relationship. Id. at 992-993. Therefore, the Roache court held the claimant's injuries were compensable.
Here, the respondents contend the claimant's break was unauthorized in the absence of a finding that the store was "not busy," when the claimant left on break. However, the respondents did not present evidence to establish any rule or definition concerning the number of customers which would render the store "busy." Neither did the respondents present evidence that the employer's personnel policy defined the term "not busy."
To the contrary, the record contains evidence that the meaning of the term "busy" is relative to the store's seasonal business. (Tr. February 16, 1999, p. 44, 49). As a result, employees generally tried to accommodate the store's business flow by taking breaks when there were fewer customers to serve. In the case of the claimant, she testified she took her breaks when there were fewer customers in the store because she was paid on commission sales. (Tr. October 26, 1998, p. 49).
Further, the record is replete with evidence that December 24, 1997, Christmas Eve, was the store's busiest day of the year. Nevertheless, the store manager testified that employees were "absolutely" expected to take a break that day. (Tr. February 16, 1999, p. 178). Under these circumstances, the ALJ was apparently persuaded that taking a break during the "least busiest" time of the work shift would comply with the employer's policy. Because the ALJ's determination is a plausible inference from the record it is binding on review.
Moreover, with record support, the ALJ determined that the claimant took her December 24 break when the store was the least busy. (Tr. October 26, 1998, p. 76; February 16, 1999, p. 36, 44, 115, 117). Consequently, the ALJ resolved the pertinent issue.
In any case, the respondents contend the record is insufficient to support a finding that the claimant's fall was not the result of a pre-existing, idiopathic condition and therefore, that is not compensable. In support, the respondents rely on Finn v. Industrial Commission, 165 Colo. 106, 437 P.2d 542 (1968), where the court held that an "unexplained fall" is not compensable. Again we disagree.
For her part, the claimant contends that the respondents' argument was not raised before the ALJ. We do not resolve the question of whether the respondents' argument was properly raised before the ALJ, because we conclude that, even if raised, the argument is without merit.
We do not dispute that where a pre-existing idiopathic condition causes the claimant to fall, the injury is not compensable unless the claimant proves a causal connection between the employment and the fall. Irwin v. Industrial Commission, 695 P.2d 763 (Colo.App. 1984). Thus, a completely unexplained fall is not compensable. See Finn v. Industrial Commission, supra; Rice v. Dayton, W.C. No. 4-386-678 (July 29, 1999). However, those are not the circumstances presented here.
Contrary to the respondents' argument, the claimant presented an explanation for the injury. The claimant testified that she was walking across the Mall when she slipped on some dirt and poinsettia leaves that were on the floor, which caused her to fall. (Tr. October 26, 1998, pp. 9, 53). Furthermore, the ALJ expressly credited the claimant's testimony to find that the claimant suffered compensable injury. ( See Summary Order April 12, 1999). Thus, the fall was initiated by the circumstances or conditions of the employment not a preexisting condition, and the fall is compensable. See H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
IT IS THEREFORE ORDERED that the ALJ's order dated September 29, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ 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. 2000. 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 October 2, 2000 to the following parties:
Lala R. Pulido, 744 Acero, Pueblo, CO 81004
Montgomery Ward, Et. Al., 3201 Dillon Drive, Pueblo, CO 81008
Insurance Company of the State of Pennsylvania, AIG Claim Services, P.O. Box 32130, Phoenix, AZ 85064
Daniel C. Kender, Esq., 131 S. Union Ave., Pueblo, CO 81003 (For Claimant)
Robert A. Weinberger, Esq., Julie A. Halaby, Esq., 1700 Broadway, Ste. 1910, Denver, CO 80290 (For Respondents)
BY: A. Pendroy