The Supreme Court of Colorado recently issued an opinion which significantly changes the traditional analysis of claims based on an unexplained fall. City of Brighton v. Rodriguez, 2014 CO 7, 318 P.3d 496 (Colo. 2014). In the underlying case, the claimant fell while walking down a set of stairs. The employer filed a General Admission of Liability, but subsequent investigation revealed that Claimant and the two witnesses to the fall could not explain why Claimant fell down the stairs. Therefore, the employer filed an Application for Hearing seeking to withdraw the General Admission of Liability based on the long-standing case law that an “unexplained fall” is not compensable.
At hearing, the Administrative Law Judge found that this was a true case of an unexplained fall, since neither the claimant nor the witnesses could provide any information which explained why the claimant fell down the stairs. Therefore, the Administrative Law Judge found that the employer had met its burden of proving that the injury did not arise out of her employment. The Industrial Claim Appeals Office affirmed the Administrative Law Judge’s Order. Claimant appealed to the Court of Appeals, which first determined that the employer had the burden of proving that the injury did not arise out of her employment (citing § 8-43-201(1)) (“[A] party seeking to modify an issue determined by a general or final admission . . . shall bear the burden of proof for any such modification.”). Because the employer could not prove why the claimant fell, the Court of Appeals determined that the employer had failed to meets its burden of proving that the injury did not arise out of her employment. The employer appealed to the Supreme Court.
The Supreme Court affirmed the reversal of the Court of Appeals, but on different grounds. The Supreme Court analyzed the issue by reference to the long-standing premise that “[a]ll risks that cause injury to employees can be placed within three well-established, overarching categories: (1) employment risks, which are directly tied to the work itself; (2) personal risks, which are inherently personal or private to the employee him- or herself; and (3) neutral risks, which are neither employment related nor
personal.” The Supreme Court first recognized that it must accept the Administrative Law Judge’s factual finding that the injury was caused by an unexplained fall. Inexplicably, the Supreme Court then held that “an unexplained fall necessarily constitutes a neutral risk” because they are not associated with either the employment itself nor with the employee him- or herself . The Supreme Court’s reasoning lacks any logic. A neutral risk is defined as a risk which neither employment related nor private to the employee, which would require that the Administrative Law Judge find that the cause of the fall was not employment-related or private to the claimant. However, the Administrative Law Judge did not make such a finding. Rather, the Administrative Law Judge found that the cause of the fall was unexplained. Therefore, there is no logical basis for the Supreme Court to hold that an unexplained fall constitutes a neutral risk.
The Supreme Court then applied the standard for compensability of an injury caused by a neutral risk – whether the injury would not have occurred but for the employment. (i.e. whether the employment causally contribute to the injury because it obligated the employee to engage in employment-related functions, errands, or duties at the time of injury). Applying the “but for” test, the Supreme Court concluded that the “fall would not have occurred but for the fact that the conditions and obligations of her employment — namely, walking to her office during her work day — placed her on the stairs where she fell…” Therefore, the Supreme Court concluded that the claimant’s injury arose out of her employment and was compensable.
The Supreme Court separately held that the Court of Appeals applied an incorrect standard of proof by finding that the employer had the burden of proving that the injury did not arise out of her employment in order to withdraw its General Admission of Liability. Rather, the Supreme Court held that a party seeking to modify an issue determined by a general or final admission must prove that it is entitled to this modification by a preponderance of the evidence. In this case, because the employer sought to modify its General Admission of Liability by withdrawing its admission of liability entirely, the employer had the burden to prove by a preponderance of the evidence that the claimant’s injuries were not compensable because her claim failed to meet one or more of the requirements in section 8-41-301(1). The effect of this clarification on the burden of proof required to withdraw an issue determined by admission is difficult to determine, and probably will be specific to the facts of each particular request to withdraw the issue previously admitted.
The Supreme Court’s holding in this case does not make unexplained falls automatically compensable. The facts of each particular unexplained fall still will play a significant part in determining compensability of the injury. In applying the “but for” test to find the unexplained fall compensable, the Supreme Court was governed by the fact the claimant fell down a set of stairs, which she was descending because conditions and obligations of her employment required her to do so. Therefore, the result of this case may have been different if the claimant had fallen while along a hallway, because the conditions of employment may not have contributed to the injury i.e. the injury would have been the same at home or at work.
The uncertainty of the effect of the ruling on unexplained falls is caused, in part, by the Supreme Court’s departure from logic to categorize an unexplained fall as a “neutral risk” and in part by its failure to define and apply the “but for” test clearly and consistently. At one point, the Supreme Court defines the but-for test as whether “the employment causally contributed to the injury because it obligated the employee to engage in employment-related functions, errands, or duties at the time of injury.” (emphasis added). By defining the but-for test in this manner, the Supreme Court arguably makes all unexplained falls compensable, because the injury would not have occurred but-for the fact that the employee was at work when the employee fell. The Supreme Court later defines the but-for test as providing that “an injury from a neutral risk ‘arises out of’ employment ‘if it would not have occurred but for the fact that the conditions and obligations of the employment placed [the] claimant in the position where he [or she] was injured.’” This but-for test seems to be less expansive, as it directs inquiry to the injured worker’s “position” where injured rather than whether the employee was engaging in employment-related functions. Using the second “but-for” test might permit the employer to argue that an unexplained fall is not compensable because the injured worker would have been in the position of becoming injured regardless of the employee’s presence at work. The difference in the two definitions of the but-for test is summed up best by the dissenting opinion of Justice Eid, which defines the but-for test as whether the injury would have occurred “‘but for the fact that the conditions and obligations of employment placed the employee in the position’ where she was exposed to the risk of being injured.” This definition focuses on the risk causing the injury, rather than the employment functions.