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King Soopers Inc. v. Industrial Claim Appeals Office.

2023 COA 73. Workers’ Compensation—Unexplained Injury—Neutral Risk—“But-for” Test.

August 3, 2023

Waters was an assistant manager for King Soopers Inc. While walking in the back area of the store carrying cardboard to a cardboard baler, he felt a pop in his right knee and fell to the ground. The area where Waters was working was dry, unobstructed, and free of debris, and before this incident, Waters had no injuries, symptoms, or treatments involving his right knee. Following the injury, Waters was able to work light duty for approximately four weeks. When his condition did not improve, Waters underwent arthroscopic surgery. He was later cleared to resume work activities without restriction and returned to work. King Soopers and its insurer filed a notice of contest, and Waters requested a hearing. An administrative law judge (ALJ) determined that Waters was engaged in an employment function when the injury occurred. The ALJ applied the “but for” test in City of Brighton v. Rodriguez, 2014 CO 7, and concluded that but for his employment, Waters would not have been walking when and where he was walking when the injury occurred. The ALJ concluded that Waters established by a preponderance of the evidence that he sustained a compensable injury. A panel of the Industrial Claim Appeals Office (panel) affirmed.

On appeal, King Soopers argued that the ALJ incorrectly applied the City of Brighton “but for” test. King Soopers asserted that this required Waters to establish that the injury would have occurred to “any person” who happened to be in his position at the time and place in question. However, the “any person” test is inapplicable here, and the ALJ correctly applied the “but for” test under City of Brighton.

King Soopers also argued that the district court erred by finding that Waters sustained a compensable injury when the ALJ specifically found that the cause of the injury was “unexplained” and that this case illustrates an “unexplained injury” rather than an “unexplained fall.” However, this difference is semantic. Under City of Brighton, an employee meets the burden to prove that an injury arose out of employment when the employee proves that the injury originated in work-related functions and arose from a neutral risk, as opposed to a preexisting condition or other personal risk. Whether an employee’s injuries arose out of employment is a question of fact determined by the ALJ. Here, the ALJ determined that Waters’s injury was employment-related, was not due to a preexisting condition, and fell within the neutral risk category of injury. Accordingly, the ALJ and the panel did not err in applying City of Brighton, regardless of whether this case is described as one involving an unexplained fall or an unexplained injury.

The order was affirmed.

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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