Colorado: High Court Adopts Positional Risk Test for Unexplained Falls

The Supreme Court of Colorado, in a divided decision, recently affirmed a decision of the state’s Court of Appeals, but on different grounds, holding that an "unexplained fall" satisfies the "arising out of" employment requirement in § 8-41-301(1)(c), C.R.S. (2013), 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.  Quoting Larson’s Workers’ Compensation Law extensively, the majority of the high court indicated that a fall with a truly unknown cause or mechanism “falls” within the “neutral risk” category, that the “but for,” positional risk, test should apply to determine whether unexplained falls arise out of the employment, and that to the extent that the Court of Appeals decision held that an unexplained fall is compensable when "every one of the potential causes [of the fall] satisfies the conditions of recovery," it was reversed.  Such a holding, said the majority, misses the mark because it introduces a kind of speculative fiction about all of the possible causes of a fall, whereas such speculation is unhelpful when the evidence indicates that the cause of a fall was unknown, again quoting Larson.

Thomas A. Robinson, J.D., the Feature National Columnist for the LexisNexis Workers’ Compensation eNewsletter, is a leading commentator and expert on the law of workers’ compensation.

LexisNexis Online Subscribers: Citations below link to Lexis Advance. Bracketed citations link to lexis.com.

See City of Brighton v. Rodriguez, 2014 CO 7, 2014 Colo. LEXIS 61 (Feb. 3, 2014) [2014 Colo. LEXIS 61 (Feb. 3, 2014)]

See generally Larson’s Workers’ Compensation Law, § 7.04 [7.04]

Source: Larson’s Workers’ Compensation Law, the nation’s leading authority on workers’ compensation law.

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