Opinion
W.C. No. 4-597-408.
October 13, 2004.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ) which awarded medical benefits. The respondents contend the claimant's injury, which was incurred while cutting meat with a pocketknife at lunch, is not compensable. We affirm.
The ALJ's findings may be summarized as follows. The claimant worked the night shift at the employer's store. The employer maintained a break room where employees were permitted to prepare and eat lunches. The room contained a refrigerator where the claimant kept some frozen hamburger patties which he intended to eat for lunch. (Finding of Fact 4).
On November 14, 2003, the claimant clocked out for his lunch period and went to the break room. The hamburger patties were frozen together and the claimant needed to pry them apart for cooking. The claimant decided to separate the patties with a personal pocketknife which he had brought to work and kept in his locker. While using the knife the claimant negligently cut his hand
The ALJ concluded the claimant's injury is compensable under the "personal comfort doctrine." Therefore the ALJ awarded medical benefits in accordance with the parties' stipulation.
On review, the respondents contend the record does not support the ALJ's finding that the claimant's injury arose out of and in the course of the employment. The respondents assert the personal comfort doctrine does not apply because the claimant acted unreasonably in using the knife to cut the meat. The respondents also contend the injury did not arise out of employment because there was an insufficient "nexus" between the injury and the claimant's employment and because the knife was an "imported danger." We are not persuaded.
Section 8-41-301(1)(c), C.R.S. 2003, requires that the claimant prove that his injury arose out of and in the course of the employment. Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo.App. 2000). The "course of employment" requirement "is satisfied when it is shown that the injury occurred within the time and place limits of the employment relation and during an activity that had some connection with the employee's job related function." An injury "arises out of" employment "when it has its origin in an employee's work-related functions and is sufficiently related thereto as to be considered part of the employee's service to the employer in connection with the contract of employment." Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991). An activity may arise out of and in the course of employment even if it is not a strict duty of the job if "it is sufficiently related to the conditions and circumstances under which the employee usually performs his job functions that the activity may reasonably characterized as an incident of employment." City of Boulder v. Streeb, 706 P.2d 786, 791 (Colo. 1985).
The question of whether the record demonstrates a nexus between the claimant's employment and the circumstances of employment such that the injury arose out of and in the course of the employment is ordinarily one of fact for the ALJ. L.E.L. Construction v. Goode, 849 P.2d 876, 883 (Colo.App. 1992), rev'd. on other issues, 867 P.2d 875 (Colo. 1994). Because the issue is factual in nature, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires that we defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Colorado adheres to the "personal comfort doctrine" which holds that injuries which occur on the employer's premises while the employee is ministering to personal necessities such as eating lunch may be sufficiently related to the circumstances under which the work is performed to arise out of and in the course of employment. In re Question Submitted by the United States Court of Appeals, 759 P.2d 17, 22-23 (Colo. 1988); Industrial Commission v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952). Of course, a deviation from the employment may occur if the claimant is performing the activity in a unreasonable manner exceeding mere negligence. See 2 Larson's Workers' Compensation Law, § 21.08[4][a].
Here, substantial evidence supports the ALJ's determination that the claimant's injury had a sufficient nexus to his employment that it arose out of and in the course of employment. The injury occurred on the employer's premises in a break room provided by the employer for the storage and preparation of employees' lunches. The fact that the claimant "clocked out" is not decisive under these circumstances, and neither is the fact that some employees left the employer's premises to get lunch elsewhere. Cf. City and County of Denver v. Industrial Commission, 196 Colo. 131, 581 P.2d 1162 (Colo. 1978); Broyles v. Wal-Mart Stores, Inc., W.C. No. 4-510-146 (July 16, 2002). The respondents cite no authority for the assertion that there is some distinction between eating and preparing lunch, and we find this distinction is not based on any logical application of the personal comfort doctrine.
Neither do we agree with the respondents' assertion that the ALJ was compelled to find the claimant acted recklessly in cutting the meat with the pocketknife. As the ALJ found, the employer's policy indicates that knives of the type used by the claimant were prohibited for "use on the job," but there is no evidence that the employer disciplined the claimant for keeping the pocketknife in his locker and using it to cut meat in the break room. Indeed, the claimant's supervisor testified the claimant was not disciplined because the employer did not believe the claimant intended to use the knife as a weapon, and because the employer's policy did not prohibit use of a "steak knife that may be for your lunch or something." (Tr. Pp. 48-49, 52). Further, the ALJ was not persuaded the claimant was using the knife as an illegal concealed weapon. Neither was there any showing that the claimant was using the knife in some unusual or reckless manner which would transcend mere negligence.
It is possible some evidence in the record might support a different result. However, that possibility affords no basis for relief on appeal. Wilson v. Industrial Claim Appeals Office, supra.
The respondents contend the ALJ should have denied the claim because the injury was caused by a danger imported to the workplace by the claimant. Therefore, the respondents contend the injury did not arise out of the claimant's employment. We disagree.
Where an injury is caused by an instrumentality brought to the workplace for the claimant's own purposes, the resulting injury is not compensable. See Industrial Commission v. Enyeart, 81 Colo. 521, 256 P. 314 (1927) (where claimant's injuries were caused solely by defective steering mechanism of claimant's automobile the injuries were not compensable merely because they occurred on the employer's premises). However, if the cause of the injury is a hazard of the employment the injury is compensable. See Kiewit Western, Inc. v. Patterson, 768 P.2d 1272 (Colo.App. 1989); Tri-State Commodities, Inc. v. Stewart, 689 P.2d 712 (Colo.App. 1984).
Here, the ALJ found the claimant sustained the injury while using the pocketknife as a "utensil" to pry apart the frozen hamburger patties. Implicit in this determination is that a condition of the claimant's employment, the employer-provided refrigerator, created the hazard (frozen patties) which caused the injury. Consequently, the imported danger doctrine does not bar recovery. Tri-State Commodities, Inc. v. Stewart, supra. Where, as here, the claimant was not using the knife in a reckless manner, the injury arose out of the employment. 2 Larson's Workers' Compensation Law, § 21.02[1][c]; Earnest v. King Soopers, Inc., W.C. No. 4-195-905 (December 9, 1994).
Insofar as the respondents make other arguments we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated June 25, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Chance Stribling, E. Brunswick Dr., Aurora, CO, Home Depot USA, Inc., Parker, CO, American Home Assurance Company, c/o Shirin Chowdhury, Sedgwick CMS, Greenwood Village, CO, Robert A. Brovege, Jr., Esq., Littleton, CO, (For Claimant).
Katherine Markheim Lee, Esq. and Kristin A. Caruso, Esq., Denver, CO, (For Respondents).