Opinion
W.C. No. 4-552-932.
July 23, 2004.
FINAL ORDER
The claimant seeks review of a supplemental order of Administrative Law Judge Henk (ALJ) which denied the claim for workers' compensation benefits. The claimant contends the ALJ erred in concluding that a fall at work did not cause a compensable event. We affirm.
The claimant alleged that she sustained compensable injuries on July 5, 2002, when she fell on the employer's premises. The claimant testified that on her way back from lunch she decided to stop in the women's restroom. According to the claimant, the restroom door was "difficult to open" and tended to snap back after it was opened. (Tr. pp. 46-47). The claimant stated that as she entered the restroom she turned and extended her right arm to catch the door and prevent it from striking another employee who was following closely behind. The claimant then fell to the floor striking her head on the tile. The claimant believed that pushing the door open may have established "momentum" which caused her to fall. (Tr. pp. 48-49).
The respondents presented medical evidence that the claimant suffered from vertigo and had been taking medication for that condition since October 2001. This evidence included the deposition of a neurologist who testified that an MRI of the claimant's brain revealed evidence of small vessel atherosclerosis which could cause vertigo. (Deposition of Dr. Burnham, pp. 10-14).
The ALJ concluded the claimant failed to prove an injury arising out of her employment and denied the claim. In support, the ALJ found the claimant suffered from preexisting vertigo and that this condition was the precipitating cause of the claimant's fall. (Finding of Fact 6, Conclusions of Law 8). The ALJ also found that although the claimant had some difficulty in opening the restroom door, the door did not constitute a "special hazard of employment" which contributed to the fall. The ALJ also resolved conflicts in the evidence and found that, contrary to the claimant's testimony, the restroom door did not "kick back" after it was opened.
On review, the claimant contends the ALJ misapplied the law to the facts of the claim. The claimant argues the finding that the claimant had difficulty opening the door establishes as a matter of law that the door constituted a special hazard of employment. Alternatively, the claimant argues that the injury was precipitated by the door itself, and therefore the special hazard doctrine is irrelevant. Finally, the claimant appears to argue for application of the positional risk doctrine. We find no error.
We understand the ALJ to have found as fact that the claimant's fall was precipitated by vertigo. This constitutes a plausible inference drawn from the medical evidence in the case as well as the claimant's rather non-specific testimony concerning the cause or causes of the fall. Because the ALJ's finding is supported by substantial evidence, we may not interfere with it on review. Section 8-43-301 (8), C.R.S. 2003; Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Where a fall at work is precipitated by a personal medical condition imported into the work place, injuries resulting from the fall are not compensable unless a "special hazard" of the employment elevates the risk or extent of the injury. A special hazard is one which is not "ubiquitous" in the sense that the risk is generally encountered outside the workplace. The special hazard element serves to establish the requisite causal relationship between the employment and the injury so that the injury "arises out of" the employment for purposes of § 8-41-301 (1) (c), C.R.S. 2003. See National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 1259 (Colo.App. 1992); Ramsdell v. Horn, 781 P.2d 150 (Colo.App. 1989).
The ALJ found that although the claimant had some difficulty opening the door, the door did not constitute a special hazard of employment. Implicit in this finding is the ALJ's rejection of the claimant's testimony that her difficulty in opening the door contributed to the fall by causing "momentum," or that the door somehow enhanced the degree of injury sustained by the claimant. Rather, the ALJ found the fall was caused solely by the vertigo. While the evidence might have permitted other inferences and conclusions, we find no basis for interfering with the ALJ's order. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (we may consider findings necessarily implied by the order, and it is presumed the ALJ rejected evidence and inferences not discussed in the order).
The claimant's assertion notwithstanding, the facts of this case are not controlled by the holding in H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990). In Vicory the claimant's injury (acceleration of cancer) was precipitated by the sudden opening of a door and the claimant's reaction to that startling event. Id. at 1169. Here, the precipitating cause of the fall was the claimant's preexisting vertigo, not a condition distinctly associated with the employment as in Vicory.
Finally, the positional risk doctrine has no application to the facts of this case. 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 some "neutral force." A neutral force is one which is neither distinctly associated with the employment nor personal to the claimant. Hence, the positional risk doctrine is applied in the types of case where the claimant is struck by lightning or a stray bullet, and in certain types of random assaults. Horodyskyj v. Karanian, 32 P.3d 470, 477 (Colo. 2001); H H Warehouse v. Vicory, 805 P.2d at 1168.
Here, there is no allegation or evidence of a "neutral force" which played a role in the claimant's injury. Instead, the evidence indicates the claimant's fall was caused by the claimant's medical condition, difficulty opening the door, the door recoiling after being opened, or a combination of these problems. Thus, the cause of the injury was either personal to the claimant or distinctly associated with the employment itself. Cf. H H Warehouse v. Vicory, supra. It follows that the positional risk doctrine is not pertinent to the analysis of this case.
IT IS THEREFORE ORDERED that the ALJ's supplemental order dated April 7, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________ David Cain
___________________ Bill Whitacre
Pamela Davis, Littleton, CO, Dillard's, Inc., Littleton, CO, Terri Kinkade, ESIS, Portland, OR, Ralph Ogden, Esq., Denver, CO, (For Claimant).
Michael W. Sutherland, Esq. and Jonathan O. Wilson, Esq., Denver, CO, (For Respondents).