Opinion
W.C. No. 4-295-717
November 17, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Erickson (ALJ), which determined that the claimant sustained a compensable injury, awarded temporary disability benefits, and denied a reduction in compensation for violation of safety rules. We affirm.
The ALJ found that the claimant was employed as a waiter at Ragnar's restaurant located on Steamboat Mountain. The ALJ determined that, in order to reach or leave the restaurant, the claimant was required to "utilize several ski lifts and several intermediate and beginner runs." Thus, the employer (Steamboat) required that employees of Ragnar's be able to ski "at an intermediate level."
The ALJ further found that Steamboat had a policy requiring employees to take a "designated route" when leaving Ragnar's restaurant. The designated route required Ragnar's employees to ski down beginner and intermediate runs to the Silver Bullet Gondola, then ride the gondola to the bottom of the mountain. The employer's policy also states that employees must take the "designated route" if they wish to be "covered by workers' compensation insurance." Nevertheless, the ALJ found that the claimant, his supervisor, and other employees often skied down without taking the designated route, and they sometimes utilized expert slopes. Finally, the ALJ stated that the claimant's supervisor did not reprimand or warn any employees concerning failure to follow the designated route.
On March 28, 1996, the claimant completed his shift at Ragnar's and proceeded to ski down the mountain. However, the claimant did not take the designated route, and fell when skiing on an expert slope. The ALJ found that the claimant broke his back and is now "paralyzed from the waist down."
Under these circumstances, the ALJ concluded that the claimant sustained an injury arising out of and in the course of his employment. Specifically, the ALJ found that skiing was an integral part of the claimant's duties. Moreover, the ALJ determined that the claimant was in the course of his employment because he was injured when "skiing down the mountain after his shift to his employee locker located at the base of the mountain." In reaching this conclusion, the ALJ rejected the argument that the employer's designated route policy limited the "sphere" of the claimant's employment. To the contrary, the ALJ held that the policy merely "directs the conduct of the employee and the manner in which the premises of the employer are to be exited."
The ALJ also rejected the respondents' argument that the claimant's compensation should be reduced based on the violation of two "safety rules." Insofar as the respondents argued that the designated route policy was a safety rule, the ALJ found that the rule was not enforced by the employer. Further, the ALJ found that the claimant did not violate the employer's rule against fast and reckless skiing because the claimant did not "willfully" disobey the rule. The ALJ found that, if the claimant was going too fast at the time of the accident, the conduct was not willful because the claimant believed he was skiing within his abilities.
I.
On review, the respondents contend that the ALJ's finding that the claimant's injury arose out of and in the course of employment is not supported by substantial evidence in the record. Specifically, they argue that by leaving the designated route and skiing on the expert slope the claimant engaged in non-compensable "recreational activity" within the meaning of § 8-40-201(8), C.R.S. 1997, and § 8-40-301(1), C.R.S. 1997. In any event, the respondents argue that the "designated route policy" limited the "sphere" of the claimant's employment, and therefore, his departure from the route defeats compensability. We are not persuaded.
Initially, we note that § 8-40-201(8) and § 8-40-301(1) exclude from coverage a claimant who is injured while participating in a "recreational activity" if the claimant is not performing any duties of employment. This exclusion applies even if the activity is "sponsored" by the employer. However, as a practical matter, these statutes do no more than require the ALJ to apply the relevant common law tests to determine whether the injury arose out of and in the course of the claimant's employment. Karlin v. Conard, 876 P.2d 64 (Colo.App. 1993); Angers v. Vail Associates, Inc., W.C. No. 4-285-328 (March 28, 1997); Maxfield v. Vail Associates, Inc., W.C. No. 4-245-217 (March 3, 1995).
An activity arises out of and in the course of employment if it is "sufficiently interrelated to the conditions and circumstances under which the employee usually performs his job functions that the activity may reasonably be characterized as an incident of employment, even though the activity itself is not a strict obligation of employment and does not confer a specific benefit on the employer." City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); see also Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995). Further, injuries sustained following the conclusion of the work shift while leaving the employer's premises are generally considered to occur in the course of the employment because leaving the employer's premises is a normal incident of the employment relationship. Ventura v. Albertson's, Inc., 856 P.2d 35 (Colo.App. 1992).
Ultimately, the determination of whether an injury arose out of and in the course of employment is a factual determination which must be resolved by consideration of the totality of the circumstances. Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, supra. Because the issue is factual in nature, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. When applying the substantial evidence test, we must defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents' argument notwithstanding, the record contains substantial evidence to support the ALJ's finding that the claimant's injury arose out of and in the course of employment. The employer's own witness testified that the ability to ski at an intermediate level was a requirement for employees of Ragnar's restaurant. The requirement existed because the only way to reach and depart from the restaurant was by skiing and riding lifts. (Tr. pp. 142-143). Moreover, at the time of the injury the claimant was skiing to the bottom of the mountain to place his gear in the locker provided by the employer.
Consequently, there is evidence that the claimant was injured while performing one of the duties of his employment, skiing. Moreover, he was proceeding directly to the base of the mountain to leave the employer's premises. Although not using the designated route, the claimant was proceeding in a fashion known to his supervisor and not punished by the employer. Therefore, the record supports the conclusion that the claimant was, at a minimum, engaged in an activity which was incident to his employment.
The respondents next contend that, regardless of whether the claimant's skiing was incident to the employment, Steamboat's "designated route" policy limited the "sphere" of the employment. Thus, the respondents assert that the claimant departed from the scope of his employment when he left the designated route and ventured onto the expert run.
As a general rule, an employer has the right to issue directives concerning what an employee may do, and when he may do it. Directives of this type regulate the "sphere" of employment, and if an employee sustains an injury while violating such a directive the injury is not compensable. Conversely, violation of rules and directives relating only to the employee's conduct within the sphere of employment do not remove injuries from the realm of compensability. Industrial Commission v. Funk, 68 Colo. 467, 191 P. 125 (1920); Bill Lawley Ford v. Miller, 672 P.2d 1031 (Colo.App. 1983).
Here, the ALJ determined that the employer required the claimant to possess the specialized skill of skiing in order to access the restaurant's unusual and remote location. Moreover, the claimant was required to utilize that skill when going to and departing from the restaurant.
Consequently, the record supports the ALJ's conclusion that skiing to and from the restaurant was an inherent part of the claimant's duties. In these circumstances, Steamboat's attempt to regulate the claimant's skiing by designating specific routes constitutes an effort to control the claimant's method of carrying out his duties, not a regulation concerning the sphere of employment. Thus, the claimant did not depart from the sphere of his employment when skiing directly to the bottom of the mountain by a route other than that designated by Steamboat. See Industrial Commission v. Funk, supra; Ramsdell v. Horn, 781 P.2d 150 (Colo.App. 1989).
In light of this disposition, we need not reach the respondents' other arguments concerning whether or not the injury arose out of and in the course of employment.
II.
The claimant makes numerous arguments concerning the sufficiency of the evidence to support particular findings of fact. We find no reversible error.
The respondents' first argument concerns the ALJ's summary order. The respondents assert that the ALJ erred in stating that witness Phillips testified that skiing was part of the claimant's job duties.
Initially, we note that it is the ALJ's final order which we review, not the summary order. In any event, the record fully supports the ALJ's conclusion that the respondents' witness testified that skiing was a part of the claimant's duties. (Tr. p. 143).
The respondents next contend that the ALJ erred in finding that the Ragnar's Restaurant is located at the top of Steamboat Mountain rather than the "middle of the mountain." In our view, any error in this regard was harmless since it does not affect the substantial rights of the parties.
The respondents next contest the ALJ's finding that "all employees must utilize several ski lifts and several intermediate and beginner runs on each shift." The respondents' assertion notwithstanding, this finding is fully supported by the evidence. In fact, the respondents' own designated route policy reflects that day workers at Ragnar's are required to utilize ski lifts and intermediate ski runs in order to access the restaurant. The fact that the designated route ultimately requires employees to take the gondola to the bottom of the mountain does not change the fact that they are required to ski to the gondola in order to board it.
The respondents also assert that the ALJ implied that employees are required to leave their ski equipment at lockers at the base of the mountain. However, we perceive no suggestion in the order that employees are "required" to leave their ski equipment in the lockers. The ALJ merely found that the employer provides lockers because the finding lends credence to the conclusion that the claimant was in the course and scope of his employment at the time he was proceeding to the bottom of the mountain. This is true because storing equipment was at least an "incident" of the claimant's employment.
The respondents also assert that the findings imply that an employee is automatically required to travel to the bottom of the mountain when his shift is over, when in fact the employee may "free ski." However, we do not perceive how the findings require that interpretation. To the contrary, the ALJ merely found that at the time of the injury the claimant was proceeding to the bottom of the mountain to leave the employer's premises.
The respondent next contest paragraph 4 of the findings of fact insofar as it states that "employer witnesses testified that the only purpose behind the designated rule was safety." Respondents point out that, during his testimony, Mr. Phillips testified that an additional purpose for the rule is to limit the "sphere" of employment.
However, Phillips' testimony was internally inconsistent concerning the purpose or purposes of the rule. At one point, he testified that the purpose of the rule was safety. (Tr. p. 120). At another time, he testified that the purpose of the rule was to govern the "scope of employment." (Tr. p. 101). The ALJ apparently resolved the conflict in the evidence against the respondents, and it was within his purview to do so. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
In any event, the ALJ was fully cognizant of the "sphere of employment" argument. He explicitly resolved this dispute against the respondents, but not because he found that the rule was not designed to limit the sphere of employment. Instead, he concluded that the claimant was acting within the sphere of his employment when skiing to the bottom of the mountain, and the rule merely regulated the method of fulfilling the claimant's duties.
The respondents' assertion concerning the testimony of Ms. Jobe without merit. The ALJ plausibly inferred from the claimant's testimony, and the testimony of other witnesses, that no warnings were issued by Jobe.
The assertion that the record is devoid of evidence to support the finding that the claimant is unable to work is without merit. The medical records reflect that the claimant was rendered paraplegic, and was under full-time medical care for a substantial period of time after the injury.
The respondents also object to the ALJ's determination of the average weekly wage. The claimant concedes that the average weekly wage is $418.03, not $418.83 as the ALJ found. Consequently, the order must be amended accordingly.
The respondents' make other arguments which are simply a reiteration of their position that the claimant's injury did not arise out of and in the course of employment. We need not repeat our conclusions in this regard.
III.
The respondents' final arguments concern the ALJ's failure to reduce the claimant's compensation for violation of two safety rules in accordance with § 8-42-112(1)(b), C.R.S. 1997. The respondents first argue that the employer had a rule prohibiting "fast and reckless skiing." They contend that the claimant necessarily violated this rule since he admitted at the hearing that he was skiing fast at the time of the injury, and because a ski patrol investigator testified that a skier chooses "how fast to ski and intentionally skis fast." We are not persuaded.
In order for a penalty to be imposed under § 8-42-112(1)(b), respondents must show that the claimant's failure to obey the safety rule was the result of "willful" conduct. Thus, respondents must prove that the claimant acted with "deliberate intent" in violating the rule. City of Las Animas v. Maupin, 804 P.2d 285 (Colo.App. 1990). Further, resolution of this issue is factual, and we must uphold the ALJ's order if supported by substantial evidence. City of Las Animas v. Maupin, supra.
Here, the claimant conceded that he was skiing "fast" at the time of the accident. However, he denied that he was skiing too fast considering the conditions and his expert ability. (Tr. p. 19). Under these circumstances, the ALJ could plausibly conclude that the claimant's accident was not the result of a deliberate violation of the employer's rule, but the result of mere negligence or accident. The fact that the evidence might have supported contrary findings and conclusions is immaterial on review. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
The respondents also argue that the claimant willfully violated the designated route policy, which was designed for his safety. However, as the ALJ found, the employer did little if anything to encourage compliance with this rule, and there is scant evidence that the employer ever punished any employee for a violation. In fact, the claimant himself testified that he had skied down expert runs with his supervisor, and the supervisor did not deny this.
Under these circumstances, the ALJ could logically conclude that the employer acquiesced in "violations" of the designated route policy. And, the respondents' argument notwithstanding, non-enforcement of this rule constitutes evidence that the claimant's violation was not "willful" within the meaning of the statute. Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, supra. As stated by the Lori's Family Dining court, "the most frequent ground for rejecting imposition of a penalty, whether it be for violation of a safety rule or willful misconduct, is the lack of enforcement of the rule or policy by an employer with knowledge of and acquiescence in its violation." 907 P.2d at 719.
IT IS THEREFORE ORDERED that the ALJ's order dated December 31, 1996, is modified to reflect that the claimant's average weekly wage is $418.03.
IT IS FURTHER ORDERED that the ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill WhitacreNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed November 17, 1997 to the following parties:
Craig Kennedy, P.O. Box 774000, Ste. 262, Steamboat Springs, CO 80477
Bud Phillips, Director of Human Resources, Steamboat Ski Resort Corp., 2305 Mt. Werner Circle, Steamboat Springs, CO 80477
Greg Spaigt, RTW Colorado, Inc., 7400 E. Orchard Road, Ste. 3025, Englewood, CO 80111
Jordan S. Levine, Esq., 3515 S. Tamarac Dr., Ste. 200, Denver, CO 80237 (For the Claimant)
Michelle R. Magruder, Esq., 1225 17th St., 28th Flr., Denver, CO 80202-5528 (For the Respondents)
By: __________________________