Opinion
W.C. No. 4-804-091.
July 23, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated March 31, 2010, that denied and dismissed the claim for workers' compensation benefits. We affirm.
The claimant filed a claim alleging he suffered a work-related injury on February 13, 2009, after taking Chantix. Chantix was prescribed by the claimant's primary care physician to help the claimant quit smoking cigarettes. After taking the Chantix, the claimant noticed blood in his urine. The claimant reacted to the Chantix and developed rhabdomyolysis, a condition caused by the breakdown of muscle tissue, potentially causing kidney failure.
Prior to 2009 the president of the employer discussed with the employer's health insurance carrier instituting a cost containment measure to reduce claims and contain premium increases. One of the cost containment measures suggested by the carrier was to encourage employees to stop smoking. As an incentive, the president announced a 20 percent discount on the employees' share of insurance premium to workers who quit smoking. However, the company was unable to implement the discount offer because of administrative problems of monitoring and verifying whether employees had quit smoking. The claimant decided to quit smoking in order to take advantage of the employer's offer of a 20 percent premium discount.
The claimant argued that he had proven by a preponderance of the evidence that his injurious reaction to Chantix arose out of and within the course of his employment. The ALJ disagreed. The ALJ concluded that there was no persuasive evidence bringing the claimant's decision to take Chantix within the course of his employment or showing that the decision arose out of his employment. The claimant appeals the dismissal of his claim.
Under the Act, an employee is entitled to compensation where the injury or death is proximately caused by an injury or occupational disease arising out of and in the course of the employee's employment. Section 8-41-301(1), C.R.S.; Horodyskyj v. Karanian 32 P.3d 470 (Colo. 2001). The phrases "arising out of" and "in the course of" are not synonymous and a claimant must meet both requirements. Younger v. City County of Denver, 810 P.2d 647, 649 (Colo. 1991); In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17, 20 (Colo. 1988). The latter requirement refers to the time, place, and circumstances under which a work-related injury occurs. Popovich v. Irlando, 811 P.2d 379, 381 (Colo. 1991). Thus, an injury occurs "in the course of" employment when it takes place within the time and place limits of the employment relationship and during an activity connected with the employee's job-related functions. In re Question Submitted by U.S. Court of Appeals, supra; Deterts v. Times Publ'g Co., 38 Colo.App. 48, 51, 552 P.2d 1033, 1036 (1976).
The term "arises out of" refers to the origin or cause of an injury. Deterts v. Times Publ'g Co., supra. There must be a causal connection between the injury and the work conditions for the injury to arise out of the employment. Younger v. City County of Denver, supra. An injury "arises out of" employment when it has its origin in an employee's work-related functions and is sufficiently related to those functions to be considered part of the employee's employment contract. Popovich v. Irlando, supra.
The question of whether the claimant met the burden of proof to establish that his injury arose out of and in the course of his employment is one of fact for determination by the ALJ. Jefferson County Public Schools v. Dragoo, 765 P.2d 636 (Colo. App. 1988). Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ's credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003).
Here, the ALJ concluded that the claimant thus failed to show it more probably true than not that his injury from taking Chantix arose out of and within the course of his employment contract. The claimant concedes that the injury seemingly falls outside the claimant's typical work activities. However, citing County of Denver School District No. 1 v. Industrial Commission, 196 Colo. 131, 581 P.2d 1162 (1978) the claimant argues that the totality of the circumstances here demonstrate that there was a sufficient nexus between his employment and the injury and therefore the injury occurred within the scope of his the employment. The claimant further cites Deterts v. Times Publ'g Co. for the proposition that when an injury is suffered while performing an activity for the mutual benefit of employer and employee, such claim is usually found compensable.
In Deterts the Court of Appeals reversed the ALJ's determination that claimant failed to establish he suffered an industrial injury. The claimant delivered newspapers. The evidence was that bicycles were essential to delivery of newspapers and preservation of bicycles insured speedy and regular delivery. The claimant sustained an injury while riding in the freight elevator in newspaper's building after leaving his bicycle in the basement, with approval of the publisher, to preclude theft or vandalism on school grounds. The court determined that the injury was employment related and "arose out of" and occurred in "the course of" employment.
The Deterts court determined that the claimant's injury was employment-related because at the time of the injury, the claimant was involved in an activity which he might reasonably be expected to undertake during the course of his employment, and he was at a place where he could reasonably be expected to be. In contrast here the injury occurred off premises. The Deterts court further explained that if an employee goes upon the premises of the employer at a reasonable time before he is to begin his day's work and is performing acts which have a causal connection with his duties and from which the employer will benefit, and is injured while so engaged, he is entitled to recover compensation.
In contrast here the injury did not occur during working hours nor did the injury occur on the employer's premises. Further, we understand that in Deterts the preservation by the newsboy of his bicycle was integrally connected to his duties of delivering newspapers. Here we to not perceive the existence of an integral connection between the claimant's work as a floater for a fabrication business performing duties such as routing, drilling, and laminating circuit boards and the injury resulting from medication taken to help the claimant quit smoking. We are not persuaded that the totality of the circumstances compels a finding of a sufficient nexus between the claimant's employment and his injury, such that a determination of compensability is mandated.
As noted by the Colorado Supreme Court in In re Question Submitted by the U.S. Court of Appeals for the Tenth Circuit, "[t]his nexus or causality requirement is subject to more than one definition." In our view this case is analogous to cases involving off duty exercise training which is mandated or encouraged by the employer and may or may not be compensable depending on the circumstances. Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996).
We note that the ALJ relied upon Price v. Industrial Claim Appeals Office. In Price v. Industrial Claim Appeals Office the supreme court held that a court should look to the following factors to determine whether an injury is compensable: (1) whether the injury occurred during working hours; (2) whether the injury occurred on the employer's premises; (3) whether the employer initiated the employee's exercise program; (4) whether the employer exerted any control or direction over the employee's exercise program; and (5) whether the employer stood to benefit from the employee's exercise program. In our view, the factors set forth by the court in Price v. Industrial Claim Appeals Office provide an appropriate framework for analysis of the present case. Although the present case does not involve exercise training, it does involve the employer's attempt to improve the health of employees through eliminating smoking. Moreover, in our opinion those factors, supported by the ALJ's findings of fact, support the ALJ's denial of the claim.
Looking at the first factor under Price the ALJ found that the claimant took the Chantix on his own time; therefore the injury did not occur during working hours. On the second factor under Price, the ALJ found the claimant took the Chantix at his own home and therefore, the injury did not occur on the employer's premises. The court in Price determined that these first two factors carry greater weight then the other factors because the time and place of injury are particularly strong indicators of whether an injury arose out of and in the course of the employee's employment. There does not appear to be a dispute concerning these findings made by the ALJ that the claimant took the Chantix on his own time while at home, and not on the employer's time. The claimant's injury resulting from a reaction to the Chantix therapy thus failed to occur within the time and place constraints of his employment. These findings strongly suggest that the injury was not compensable under the Workers' Compensation Act of Colorado. The three remaining factors involved more factual dispute.
On the third factor of whether the employer initiated the program the ALJ's findings of fact on this factor include the following. The employer announced a 20 percent discount on the employees' share of insurance premium to induce workers to quit smoking. The company was unable to implement the discount offer. The claimant decided to quit smoking in order to take advantage of the employer's offer. However, the ALJ also found that the claimant decided to take Chantix based upon advice of his primary care physician, and not based upon any implied or express directive or advice from the employer. Additionally the ALJ found that the claimant's decision to quit smoking was a voluntary decision he acted upon to benefit himself.
On the fourth factor of whether the employer exerted any control or direction over the employee's program the ALJ made the following findings. The claimant's testimony that he felt employer would terminate him if he did not quit smoking was unpersuasive and unreasonable. The claimant testified that his job was not in jeopardy because of his smoking habit. There was no persuasive evidence to support the claimant's subjective belief that the employer would terminate him because of his smoking habit. No one at the employer directed the claimant to seek medical attention from his primary care physician to quit smoking. No one at the employer directed the claimant to take Chantix. The claimant took the Chantix on his own time while at home, and not on the employer's time.
On the fifth factor of whether the employer stood to benefit from the employee's exercise program, the ALJ made a number of relevant findings. The claimant's decision to quit smoking was a voluntary decision he acted upon to benefit himself. The claimant's decision to quit smoking represented a way to improve his long-term health. The claimant's decision benefited him personally. There was no persuasive evidence showing what benefit would inure to the employer, other than as a possible way to lower premiums if the losses to the carrier decreased because of improved health of the employee risk pool. The ALJ concluded that while the claimant argued his decision to quit smoking provided a benefit to the employer that should be deemed part of his employment contract, such benefit was speculative and theoretical.
Other than on the first two factors under Price there was conflicting evidence presented. However, the findings made by the ALJ are supported in the evidence and he drew reasonable inferences from the evidence. In our view, considering the totality of the circumstances, the ALJ's determination the injury resulting from taking the Chantix medication was not compensable is consistent with the principles announced in Price.
We note that the Colorado Court of Appeals has used the Price analysis in similar circumstances. In White v. Industrial Claim Appeals Office 8 P.3d 621 (Colo. App. 2000) the court determined that evidence supported determination that high school substitute teacher's weightlifting in the high school weight room during a free period was a "recreational" activity, and thus, was not within the course and scope of his employment, as required for him to recover workers' compensation benefits for injuries sustained while weightlifting; even if weightlifting did relate to physical fitness, that fact did not preclude finding that teacher's personal weightlifting activities were essentially recreational). In Wackenhut Corp. v. Industrial Claim Appeals Office 975 P.2d 1131 (Colo. App. 1997) the court noted that the Price test for determining whether exercise performed for purpose of meeting employment-related fitness requirements arises out of and in the course of employment is not limited to off-duty exercise.
In conclusion, utilizing the framework set forth in Price, we view the ALJ's determination that the injury, caused by the taking of Chantix, was not compensable as consistent with the principles announced in Price. Therefore, we perceive no reason to interfere with the order.
IT IS THEREFORE ORDERED that the ALJ's order dated March 31, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
JOHNNIE BUCKLEY, 11923 EAST HARVARD AVENUE, #105, AURORA, CO, (Claimant).
ADVANCED CIRCUITS, INC., 21101 EAST 32ND PKWY, AURORA, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., 7501 E LOWRY BLVD, DENVER, CO, (Insurer).
IRWIN BOESSEN, PC, Attn: LANE N. COHEN, ESQ., DENVER, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, Attn: BRADLEY J. HANSEN, ESQ., DENVER, CO, (For Respondents).