IN THE MATTER OF THE CLAIM OF: JAMES SALAZAR, Claimant,
v.
3ATS d/b/a GRAND VALLEY TREE SERVICE, Employer,
and
PINNACOL ASSURANCE, Insurer, Respondents.
W.C. No. 5-128-144-001
Colorado Workers Compensation
Industrial Claim Appeals Office
March 3, 2021
WITHERS SEIDMAN RICE MUELLER GOODBODY PC, Attn: SEAN E P
GOODBODY ESQ, (For Claimant)
RUEGSEGGER SIMONS & STERM LLC, Attn: CAROL A FINLEY ESQ,
(For Respondents)
FINAL
ORDER
The
claimant seeks review of an order of Administrative Law Judge
Sidanycz (ALJ) dated September 21, 2020, that denied his
claim for benefits. We affirm the decision of the ALJ
The
claimant worked for the employer in its tree trimming and
removal business. On Friday, January 10, 2020, the claimant
claimed an injury to his low back that occurred while he was
lifting heavy branches at work. The claimant reported the
injury to the employer the following Monday and asked to see
a doctor. The employer provided a list of physicians and the
claimant selected Dr. Sofish. While the claimant’s wife
drove the claimant to an appointment with Dr. Sofish on
January 16, their car was struck by another motor vehicle.
The claimant complained of injuries due to this accident
involving his neck, right arm, thoracic and lumbar spine.
The
claimant had sustained a previous injury to his back in 2002,
when he fell off an oil rig. He had treated intermittently
for the effects of the 2002 injury through the Veterans
Administration. He underwent an MRI exam on his lumbar spine
as recently as December 19, 2019. Dr. Sofish advised the
claimant his low back symptoms could be the effects of the
2002 injury. The claimant ceased treating with Dr. Sofish.
The respondents arranged for the claimant to undergo an
independent examination with Dr. Reiss who arrived at the
opinion the claimant had not sustained a new injury on
January 10, but, instead, was afflicted by the residual
effects of his fall in 2002.
The
respondents denied the compensability of the January 10
injury. The claimant sought a hearing regarding
compensability, temporary total disability benefits and
medical benefits. Following an August 27, 2020, hearing the
ALJ ruled the claimant had not demonstrated he sustained an
injury on January 10 and denied his claim.
On
appeal the claimant contends the ALJ was in error insofar as
she did not find he had proved a compensable injury as a
matter of law; that the ALJ had applied an additional
compensability requirement to his claim; and that the ALJ
required the claimant prove a compensable claim before
injuries he incurred in the quasi-scope of employment could
be deemed compensable.
I.
The
claimant argues that he complained of increased symptoms of
low back pain after lifting heavy branches at work on January
10. He reported an injury to his employer and when he saw Dr.
Sofish, he was assigned lifting restrictions, which led him
to miss work for more than three shifts. The claimant
contends these circumstances require a determination he
suffered a compensable work injury as a matter of law. In
support, the claimant refers to the decision in City of
Brighton v. Rodriguez, 318 P.3d 496 (Colo. 2014), and
maintains that case provides that when an injury arises from
an employment risk, the injury is work related as a matter of
law.
In
City of Brighton, the Court addressed whether an
unexplained fall while at work satisfies the “arising
out of” employment requirement of Colorado’s
Workers’ Compensation Act, §8-41-301(1)(c),
C.R.S., and is thus compensable as a work-related injury. In
that case, the Court identified the following three
categories of risks that cause injuries to employees: (1)
employment risks directly tied to the work itself; (2)
personal risks, which are inherently personal; and (3)
neutral risks, which are neither employment related nor
personal. The Court held that the first category of risks
encompass risks inherent to the work environment and are
compensable. The Court further held that an unexplained fall
necessarily stems from a “neutral” risk, and
under the but-for test, an unexplained fall arises out of
employment if the fall would not have occurred but for the
fact that the conditions and obligations of employment placed
the employee in the position where he or she was injured.
Id. at 499-500.
The
determination as to whether the injury in question arose out
of employment is a question of fact to be resolved by the
ALJ. City of Brighton, supra, at 501, ¶11.
The
claimant argues that regardless of previous treatment for his
back condition, he required medical treatment as a result of
lifting branches on January 10. According to the claimant,
his receipt of medical treatment, his medical restrictions on
work activity, and his actual wage loss...
