Opinion
W.C. No. 4-387-789
March 27, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which awarded the claimant temporary total disability and medical benefits as a result of injuries he sustained during an assault and battery by a coemployee. We affirm.
This matter was before us previously. Our Order of Remand dated October 21, 1999, contains an extensive statement of the facts. We incorporate that statement herein. Our order directed the ALJ to determine whether "the conditions and obligations of the claimant's employment aggravated or exacerbated Robinson's [the assailant] private animosity towards the claimant."
On remand, the ALJ found that Robinson's assault on the claimant was partially motivated by animosity over the claimant's sexual harassment of Robinson's girlfriend (Sandoval), also a coemployee, and partially by Robinson's anger over the claimant's abuse of his supervisory authority. Specifically, the ALJ determined that Sandoval was reluctant to report the claimant's improper conduct because she was afraid of retaliation by the claimant. Consequently, the ALJ concluded that "the conditions and obligations of the claimant's employment exacerbated private animosity which Robinson felt towards the claimant." The ALJ awarded benefits accordingly.
The respondents contend the ALJ erred as a matter of fact and law in determining that the claimant's injury arose out of the employment. Relying on Velasquez v. Industrial Commission, 41 Colo. App. 201, 581 P.2d 748 (1978), the respondents argue the assault on the claimant was motivated by Robinson's personal jealousy over the claimant's advances to Sandoval and, therefore, is not compensable. We disagree.
Assaults by one employee against another stemming from disputes concerning the performance of work are considered to arise out of employment, regardless of which employee was the initial aggressor. Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991); Banks v. Industrial Claim Appeals Office, 794 P.2d 1062 (Colo.App. 1990). Use or abuse of supervisory authority is a circumstance having sufficient connection to the circumstances under which work is performed that it "arises out of" employment. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
Here, the record contains substantial evidence to support the ALJ's finding that the assault on the claimant was partially motivated by Robinson's belief that the claimant was exploiting his supervisory authority and intimidating Sandoval. Thus, this finding must be upheld on review. § 8-43-301(8), C.R.S. 1999. Moreover, the finding supports the conclusion that the assault was not purely personal, but was in part motivated by a work-related dispute involving the performance of the claimant's supervisory duties.
We do not consider Velasquez v. Industrial Commission, supra, as authority to the contrary. In Velasquez, the Industrial Commission specifically found the record contained no evidence "that the motivation for the assault was in any way related to the employment." Instead, the claimants were shot simply because the coemployee believed the claimants were making obscene telephone calls to his wife. Thus, there was insufficient evidence of work connection to support an award. Nevertheless, the Velasquez court was careful to note the result might be different if a private dispute is "exacerbated by the employment."
IT IS THEREFORE ORDERED that the ALJ's order dated December 23, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 1999. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 27, 2000 to the following parties:
Gilberto Padilla, 665 Carpenter Dr., Delta, CO 81416
Telecheck International, Inc., 3025 S. Parker Rd., Aurora, CO 80014-2911
Laura Denny, Travelers Indemnity Company, P. O. Box 173762, Denver, CO 80217-3762
Barrie G. Sullivan, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
Lawrence D. Blackman, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy