Salazar v. Indus. Claim Appeals Office of Colo.

• Decision Date: 20 January 2022
• Docket Number: Court of Appeals No. 21CA0438
• Citation: Salazar v. Indus. Claim Appeals Office of Colo., 508 P.3d 805, 2022 COA 13 (Colo. App. 2022)
• Parties: James SALAZAR, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO, 3ATS, d/b/a Grand Valley Tree Service, and Pinnacol Assurance, Respondents.
• Court: Colorado Court of Appeals

508 P.3d 805

2022 COA 13

James SALAZAR, Petitioner,

v.INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO, 3ATS, d/b/a Grand Valley Tree Service, and Pinnacol Assurance, Respondents.

Court of Appeals No. 21CA0438

Colorado Court of Appeals, Division III.

Announced January 20, 2022

Withers Seidman Rice Mueller Goodbody P.C., Sean E. P. Goodbody, Grand Junction, Colorado, for Petitioner

No Appearance for Respondent Industrial Claim Appeals Office

Pinnacol Assurance, Harvey D. Flewelling, Denver, Colorado, for Respondents3ATS and Pinnacol Assurance

The Elliot Law Offices, PC, Alonit Katzman, Arvada, Colorado, for Amicus Curiae Colorado Worker's Compensation Education Association

Furman and Lipinsky, JJ., concur

ORDER AFFIRMED

Opinion by JUDGE BROWN

¶ 1 In this workers’ compensation action, claimant, James Salazar, seeks review of a final order of the Industrial Claim Appeals Office(Panel) upholding the denial and dismissal of his claim for benefits.An administrative law judge (ALJ) determined that claimant did not sustain a compensable injury and therefore the injuries he later sustained in a motor vehicle accident on his way to a medical appointment did not fall under the quasi-course of employment doctrine.Because we agree with the ALJ and the Panel that injuries sustained in a subsequent accident are compensable only when there first exists an initial compensable injury, we affirm.

I.Background

¶ 2Claimant worked for 3ATS, doing business as Grand Valley Tree Service, from June 2019 to January 2020 trimming, cutting, and removing trees.On Monday, January 13, 2020, claimant texted Grand Valley Tree Service's owner, Nathan Ridgley, to advise the latter that he

woke up this morning with a very sore lower back.My pain level on Friday after work was at a 7, and this morning about an 8 therefore; [I] really need to get in to see a Dr today ....Picking up logs on Friday was the cause.

That prior Friday, January 10, 2020, claimant had been working with a crew trimming and removing trees from Mr. Ridgley's father's property.¹

¶ 3 Upon learning of the potential injury, Mr. Ridgley provided claimant with a list of treaters, as required by section 8-43-404(5)(a)(I)(A), C.R.S. 2021.From that list, claimant selected Dr. Theodore Sofish because Dr. Sofish "was in [claimant's] area."

¶ 4Claimant's wife drove him to his appointment with Dr. Sofish on January 16, 2020.En route, they were involved in a motor vehicle accident when their "car was T-boned by an elderly woman" on the passenger side.Despite their involvement in the collision, claimant and his wife proceeded to the appointment with Dr. Sofish.Claimant testified that after the motor vehicle accident he experienced headaches, arm tingling, shoulder pain, and neck and low back strain.

¶ 5 In 2002, many years before he worked for Mr. Ridgley, claimant injured his back in an accident on an oil rig.He testified that while placing a belt at the rear of the rig, he slipped on the wet surface and "literally fell off the side of the rig," landing in "a crunched down position."He received treatment for that back injury from a chiropractor and the "Veterans Administration"(VA).Medical records establish and claimant admits that he received treatment for his continuing back pain in 2016, 2017, 2018, and 2019.Notably, in November 2019 — weeks prior to the injury he allegedly suffered while working for Mr. Ridgley — claimant reported to his VA physician that he was experiencing such severe chronic back pain that he requested a back brace to help with his work.An MRI performed on December 16, 2019, at the request of the VA physician found "moderate right and mild left-sided foraminal stenosis at L4-5,""right disc extrusion," and "a left paracentral disc extrusion at L5-S1 abut[ting] the descending S1 nerve root ... caus[ing] moderate left-sided foraminal stenosis."

¶ 6 Given claimant's documented history of pre-existing chronic back pain and degenerative disc changes, Grand Valley Tree Service and its insurer, Pinnacol Assurance (collectively, employer), filed a notice of contest on February 10, 2020, challenging the causation of claimant's injuries.To support its position, employer sent claimant to Dr. Brian Reiss for an independent medical examination.After examining claimant, taking his medical history, and reviewing his extensive prior medical records, Dr. Reiss concluded that claimant did not suffer an injury on January 10, 2020.As Dr. Reiss explained, simply suffering pain while working is not conclusive evidence that an injury occurred.Instead, Dr. Reiss attributed claimant's back pain to his pre-existing back condition.Dr. Reiss conceded, though, that claimant's condition may have worsened as a result of the January 16, 2020, motor vehicle accident, and that claimant may have suffered additional symptomology associated with the accident.

¶ 7Claimant applied for a hearing, seeking medical and temporary total disability (TTD) benefits.At the hearing, Dr. Reiss reiterated his opinion that claimant had not suffered any injury on January 10, 2020.The ALJ found Dr. Reiss's opinion persuasive and credible, concluding that "claimant did not suffer a compensable injury on January 10, 2020."In contrast, the ALJ discredited claimant's testimony, finding him to be neither credible nor persuasive.

¶ 8 Having determined that claimant did not sustain a work-related injury, the ALJ also denied and dismissed claimant's request for benefits arising out of the January 16, 2020, motor vehicle accident.Relying on the quasi-course of employment doctrine, claimant maintained that because the accident occurred while he was on his way to his medical appointment with Dr. Sofish, any resulting injuries should be covered, even if the work-related event did not cause a compensable injury.The ALJ disagreed.She concluded that the quasi-course of employment doctrine only applies if there is first a compensable injury.She therefore denied and dismissed claimant's claim for medical and TTD benefits.

¶ 9 On review, the Panel affirmed the ALJ's ruling.The Panel agreed with the ALJ that a compensable injury must first be found before coverage can attach for injuries sustained in a related accident.The Panel noted that prior cases that have addressed quasi-course of employment "universally require the subsequent injury to have been incurred through the pursuit of treatment required by a ‘compensable injury.’ "Because substantial evidence supported the ALJ's finding that no injury occurred on January 10, 2020, the Panel could not set the finding aside.And if no injury occurred on January 10, 2020, no coverage existed for the January 16, 2020, accident either.

II.Analysis

¶ 10Claimant raises two arguments on appeal: (1)the Panel and the ALJ misapplied the law by concluding that injuries attributable to his January 16, 2020, motor vehicle accident were not covered; and (2) the ALJ and the Panel violated his rights to equal protection by denying him coverage for his motor vehicle accident injuries.As discussed below, we are not persuaded by either of these contentions.

A. Quasi-Course of Employment Doctrine

¶ 11Claimant contends that the quasi-course of employment doctrine mandates that the injuries he sustained in the January 16, 2020, motor vehicle accident be covered.He argues that he only traveled to see Dr. Sofish because of his "contractual duties" with employer to seek treatment for his claimed back injury with a physician of employer's choosing.He points out that, at the time of the accident, he could not have known that employer would contest compensability and he should not be punished for following workers’ compensation protocols requiring him to see a physician selected by employer.Along with amicus, he asserts that a system that leaves employees vulnerable to injuries and expenses arising out of an accident in which they would not have been involved but for their trip to see an employer-sanctioned physician is unfair and contrary to the beneficent purposes and liberal construction of the Workers’ Compensation Act(Act).A more just interpretation of the Act, he argues, would compensate him and other similarly injured workers for injuries caused by subsequent travel accidents.We disagree.

1.Governing Law

¶ 12 A claimant has a right to compensation under the Act upon satisfaction of three conditions:

(a) Where, at the time of the injury, both employer and employee are subject to the provisions of said articles and where the employer has complied with the provisions thereof regarding insurance;

(b) Where, at the time of the injury, the employee is performing service arising out of and in the course of the employee's employment;

(c) 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 and is not intentionally self-inflicted.

§ 8-41-301(1), C.R.S. 2021.Thus, "[t]o receive workers’ compensation benefits, an injured worker must establish, by a preponderance of the evidence, that he has sustained a compensable injury or death ‘proximately caused by an injury ... arising out of and in the course of the employee's employment ....’ "SkyWest Airlines, Inc. v. Indus. Claim Appeals Off. , 2020 COA 131, ¶ 13, 487 P.3d 1267(quoting§ 8-41-301(1)(c) ).

¶ 13 An employer is responsible for the direct and natural consequences that flow from a compensable injury.Travelers Ins. Co. v. Savio , 706 P.2d 1258, 1265(Colo.1985).But an employee who sustains a work-related injury bears the threshold burden of establishing that the injury is causally connected to the employee's work."Proof of causation is a threshold requirement which an injured employee must establish by a preponderance of the evidence before any compensation is awarded."Faulkner v. Indus. Claim Appeals Off. , 12 P.3d 844, 846(Colo. App.2000).

¶ 14 The quasi-course of employment doctrine

applies to activities undertaken by the employee

...