Opinion
Aug. 22, 1972.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 375
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for respondent Industrial Commission of the State of Colorado.
Fred B. Dudley, Richard G. Fisher, Jr., Denver, for petitioners.
Philip Hornbein, Jr., Denver, for respondent Logan J. Lucas.
COYTE, Judge.
This is an appeal from a final order of the Industrial Commission of Colorado awarding workmen's compensation benefits to the claimant, Logan J. Lucas.
The claimant was employed by the City and County of Denver to operate a rotary lawn mower. On July 15, 1969, while cleaning mud off the left rear tire of a running lawn mower, he fell backwards, and, in attempting to regain his balance, he grabbed the handle of the mower and pulled the mower over his foot. As a result, he sustained a traumatic amputation of the second right toe at the distal phalanx and a laceration of the right great toe. The claimant was awarded temporary total disability from July 16, 1969, to August 13, 1969, and permanent partial disability of 14% Of the right foot as measured at the ankle.
The appellants' contention, and the only issue here on appeal, is that the injury resulted from the claimant's willful violation of a safety rule and that therefore, pursuant to C.R.S.1963, 81--13--4, the compensation should be reduced by 50 percent. We disagree and affirm.
In his supplemental order of June 29, 1971, the referee found that a city rule in effect at the time of the accident required an employee to turn off the mower and disconnect the spark plug when working on the mower. This was to prevent injury to employees caused by the mower being accidentally started by an employee turning the blade of the mower while cleaning the undersurface of the machine. In light of the testimony, the referee interpreted 'worked on' to mean 'working on, cleaning, or adjusting portions of the mower in such areas as would cause the whirling blade of the mower to become exposed.' He further found that the rule was not broad enough to indicate to a reasonable employee that the mower should be turned off and the spark plug disconnected while merely cleaning mud off a wheel, such wheel being well shielded and protected from the mower blade. Thus, the referee concluded that, since the rule did not apply to the condition and situation which caused the injury, claimant's injury could not have been caused by a willful violation of the rule.
The rule was orally promulgated and the testimony as to its content and meaning was in conflict. The claimant testified that he understood the rule to apply only when cleaning underneath the mower and that he had not been told to follow that rule when cleaning the tires. There was no dispute as to claimant's intent to scrape mud off the rear tire. His supervisor's tentimony was to the effect that he had advised the claimant to turn off the mower and disconnect the spark plug whenever cleaning the mower, including the wheels. In response to the referee's question, claimant's supervisor affirmed that the reason for the rule was to avoid having the spark plug fire when the employee turned the blade to clean the bottom of the mower.
The credibility of the witnesses is solely within the prerogative of the Commission. Breit v. Industrial Commission, 160 Colo. 205, 415 P.2d 858. Since there was evidence to support the finding of the Commission that there was no violation of a rule which would invoke the penalty provision in C.R.S.1963, 81--13--4, such finding will not be disturbed by us on review.
Order affirmed.
SILVERSTEIN, C.J., and SMITH, J., concur.