Compensable Risks per City of Brighton Case

It is well-known that compensability relies on whether an injury arose from either employment risk or neutral risk categories as defined by City of Brighton v. Rodriguez, 318 P.3d 496 (Colo. 2014).  If an injury arises out of a purely personal risk, such an injury will not be compensable under workers’ compensation.  In Parks v. Northwest Colorado Visiting Nurse, the Industrial Claims Appeals Office (“the Panel”) decided whether the Administrative Law Judge (“ALJ”) erred in determining if an injury sustained while commuting to and from worksites was resultant of either an employment risk, personal risk, or neutral risk and whether such injury was compensable.   

In Parks, Claimant worked as a home health physical therapist who typically commuted about 120 miles each day.  On April 10, 2018, upon arriving to his first patient’s home, Claimant claimed to have sustained an injury to his lower back and/or buttocks.  At hearing and upon cross-examination, Claimant gave three separate reasons for what caused his injury; however, each reason arose at or around the time he exited his car at his first patient’s home. Claimant explained that by the time he had reached his second patient’s home, his injury was so painful that he rested on the second patient’s couch.  While driving back to his workplace at the end of that same day, Claimant’s condition rapidly deteriorated.  Claimant’s daughter had to retrieve Claimant at the end of the day, help him into her car, and drive him home.  

Evidence submitted to the ALJ showed that the Claimant had an underlying back condition which had been previously treated with lumbar injections in 1998.  In reviewing this work injury claim, Claimant’s inconsistent statements, and Claimant’s pre-existing condition, the ALJ found that Claimant’s symptoms were not related to any job duty.  The ALJ found that Claimant’s symptoms were caused by a non-work-related underlying lumbar spine condition.  The ALJ concluded that riding in the car did not contribute to the development of symptoms that would “in any way constitute a compensable injury.” 

Claimant contended the ALJ misapplied City of Brighton by failing to determine whether the injury was caused by either an employment risk or by a neutral risk. The Court in City of Brighton explained that in working there are three kinds of risks: 1) employment risks, directly tied to work; 2) personal risks, which are inherently personal; and 3) neutral risks, which are neither employment related nor personal.  The first category mandates compensability if such risk results in injury. The second does not. The third category may be compensable if application of a simple “but-for” causation test reveals that the act of being at work would have caused the employee to be injured.

The ALJ found that there was no employment risk that caused this injury.  Instead, the ALJ clearly found that the record of Claimant’s pre-existing condition pointed to an injury resulting from a personal risk.  The pre-existing condition precluded “being at work” from being the “but-for” cause of the Claimant’s injury, thus eliminating the theory of neutral risk.  Therefore, because the Claimant’s injury was purely the result of a personal risk, the ALJ denied the Claimant’s claim for compensation and the Panel affirmed the ALJ’s determination. 

Parks v. Northwest Colorado Visiting Nurse, W.C. No. 5-076-853-001 (ICAO, May 20, 2020) 

Would you like to know more? Contact Karina Prigge at kprigge@pollartmiller.com or 877-259-5693.

From the June 2020 Newsletter

2020-07-02T08:48:28+00:00