Opinion
W.C. No. 4-673-066.
November 3, 2006.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) dated May 9, 2006 that denied and dismissed the claim for benefits. We set the order aside and remand for entry of a new order.
The ALJ's pertinent findings of fact are as follows. The claimant suffered an injury when she was attending a class for recertification of her state licensure. The claimant pushed herself out of chair that had arms and felt something snap in her right arm. An MRI revealed a rotator cuff tear, as well as arthritic changes in her shoulder. The claimant had a medical history which included treatment for her neck and shoulders, which predated the chair incident. Dr. Erickson and Dr. Primack opined the claimant had pre-existing structural changes in her shoulder that were apparent on the MRI. Dr. Primack also opined that because of the claimant's underlying structural problems in the shoulder, the tear could have occurred at any time and any place. Dr. Erickson concluded that the claimant likely had a pre-existing impingement syndrome, which finally tore when she lifted herself from the chair. The ALJ found that the claimant had a pre-existing non-industrial condition of an arthritic condition in her right arm, which made it more likely that the injury would occur. The ALJ further found that the chair with arms did not constitute a special hazard of her employment. The ALJ concluded that the injury occurred under ubiquitous conditions not peculiar to the work place, and the injury was not compensable.
On appeal the claimant contends that the claimant's injury was precipitated by a work related activity, not by the latent shoulder weakness. She asserts that the ALJ's finding that the injury arose under ubiquitous conditions and therefore was not compensable is erroneous as a matter of both fact and law.
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. See National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 763 (Colo.App. 1992). This principle is known as the "special hazard" rule. Ramsdell v. Horn, 781 P.2d 150(Colo.App. 1989). The rationale for this rule is that unless a special hazard of employment increases the risk or extent of injury, an injury due to the claimant's pre-existing condition does not bear sufficient causal relationship to the employment to "arise out of" the employment. Gates v. Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo.App. 1985); Gaskins v. Golden Automotive Group, L.L.C., W.C. No. 4-374-591 (August 6, 1999) (injury when pre-existing condition caused the claimant to stumble on concrete stairs not compensable because stairs were ubiquitous condition).
A "special hazard" of employment is one which contributes to the accident or to the extent of the injuries sustained. National Health Laboratories v. Industrial Claim Appeals Office, supra. However, a condition is not considered to be a special hazard of the employment if it is "ubiquitous" in the sense that it is found generally outside of the employment. Gates Rubber v. Industrial Commission, supra (concrete floor is a ubiquitous condition encountered on sidewalks, parking lots, streets and homes). Kidwell v. City of Denver W.C. No. 4-601-057 (December 15, 2004). Here the ALJ found that a chair with arms was a ubiquitous condition, and did not constitute a special hazard of the claimant's employment.
We do not question the ALJ's conclusion that, under the circumstances of this case, the chair from which claimant arose did not constitute a "special hazard" of employment. In Crass v. Cobe Laboratories, W.C. No. 3-960-662 (October 10, 1991), aff'd., Crass v. Industrial Claim Appeals Office, (Colo.App. No. 91CA1776) under facts similar to the present case a chair was found to constituted an "ubiquitous" condition which the claimant would have encountered off, as well as on, the job.
However, proof of a "special hazard" is not required where the direct cause of the injury is the employment not the pre-existing condition. For example, in H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990), the claimant fractured his arm while he was at work when a door was suddenly and unexpectedly opened which startled the claimant and caused him to hastily move his arm causing the bone to fracture. Although the arm was weakened by a pre-existing but undetected cancerous growth, the court held that the injury was precipitated by the sudden opening of the door. Thus, the court concluded that "but for" the act of opening the door, the claimant's pre-existing condition would not have resulted in an injury, and therefore, the "special hazard doctrine" did not apply. See Shellenberger v. Brakes Plus W. C. No. 4-397-534 (May 18, 2000)
Here, the ALJ found the claimant had a pre-existing arthritic condition, "which made it more likely that her October 17, 2005, injury would occur." Findings of Fact, Conclusions of Law, and Order at 4, ¶ 5. It is not clear from the ALJ's findings whether she found that the rotator cuff tear in the claimant's right shoulder was "precipitated" by the preexisting condition, thus triggering the "special hazard" doctrine. If, as in Crass v. Cobe Laboratories, supra, the ALJ did not believe the arising from a chair as a condition of employment combined with or aggravated the claimant's preexisting condition so as to "precipitate" the condition by causing strain or trauma, then the claim might not be compensable. See Morrison v. Industrial Claim Appeals Office, 760 P.2d 654 (Colo.App. 1988).
In the alternative the ALJ may have found that the exposure to the chair as a condition of claimant's employment acted on her preexisting condition so as to produce disability. If the ALJ determined as a matter of fact that the claimant's action in standing up from a chair was a precipitating cause of the rotator cuff tear, then the chair incident might be compensable. H H Warehouse Vicory, supra. IT IS THEREFORE ORDERED that the ALJ's order dated May 9, 2006 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
Clisham, Satriana, Biscan, LLC, Patricia Jean Clisham, Esq., Denver, CO, (For Respondents).
Michael P. Dominick, Esq., Boulder, CO, Boulder County, Pam Stonecipher, Boulder, CO, Patricia F. Roberts, Frederick, CO, (For Claimant).