Summary
holding that employees who were shot by a co-worker at work did not suffer injuries “arising out of” employment because the assailant had purely personal, and not employment-related, motivations for the attack
Summary of this case from City of Brighton & Cirsa v. RodriguezOpinion
No. 77-1078
Decided June 29, 1978.
Two employees, who had been shot by a co-employee while at work, sought review of Industrial Commission's denial of their claims for workmen's compensation benefits.
Order Affirmed
1. WORKERS' COMPENSATION — Claimants — Shot — At Work — By Co-Employee — Circumstances — Failed to Establish — Injuries Not Occur — But For Employment — Benefits — Properly Denied. Where the circumstances surrounding incident in which two employees were shot by a co-employee made it evident that the shooting could have happened at any other time or place, wherever and whenever, the co-employee happened to find the victims, the injured employees, in workmen's compensation proceeding, failed to establish that their injuries would not have occurred but for the fact that their employment positioned them where they were injured, and thus they were properly denied workmen's compensation benefits for the shooting injuries they had received.
2. Claim for Benefits — Injuries Sustained — Assault by Co-Employee — Animosity — From Private Life — Not Exacerbated — By Employment — Benefits — — Not Warranted. Relative to claims for workmen's compensation benefits for injuries received in an assault by a co-employee, when the animosity or dispute that culminates in the assault is imported into the employment from the claimant's domestic or private life, and is not exacerbated by the employment, the assault does not arise out of the employment under any test, and thus an award of workmen's compensation benefits therefor is not warranted.
Review of Order from Industrial Commission of the State of Colorado
Pepper Rubin, P.C., Eugene Pepper, for petitioners.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Timothy R. Arnold, Assistant Attorney General, for respondent Industrial Commission of Colorado.
William J. Baum, for respondents State Compensation Insurance Fund and City County of Denver.
Petitioners seek review of a final order of the Industrial Commission denying their respective claims for workmen's compensation benefits. We affirm.
The determinative issue presented for review is whether the Commission erred in concluding that petitioners' injuries did not arise out of their employment with the respondent City and County of Denver.
The record discloses that petitioners were both shot by a co-employee while they were at work. The co-employee believed that petitioners were responsible for making a number of obscene telephone calls to his wife, and the Commission expressly found that: "The record is devoid of any evidence indicating that the motivation for the assault was in any way related to the employment . . . ." Since this finding is supported by the record, it will not be disturbed upon appellate review. Archer Freight Lines, Inc. v. Horn Transportation, Inc., 32 Colo. App. 412, 514 P.2d 330 (1973).
In Kitchens v. Dep't of Labor Empl., 29 Colo. App. 374, 486 P.2d 474 (1971), this court analyzed the rule applicable to workmen's compensation cases involving injury from risks not common to a particular type of employment as follows:
"In Aetna Life Insurance Co. v. Industrial Commission, 81 Colo. 233, 254 P. 995, our Supreme Court made a full statement of the rule that in cases involving injuries of an origin not common to a particular type of employment, if an employee's work positions him where he was when injured, and if it is demonstrated that his injury would not have occurred but for that fact, the required causal connection between the employment and the injury has been established." (emphasis in original)
[1] In the present case, although petitioners were injured on the premises of their employer, they failed to establish that their injuries would not have occurred but for the fact that their employment positioned them where they were when injured. This is evident from the fact that the shooting could have happened at any other time or place, wherever and whenever, the co-employee happened to find the petitioners.
Accordingly, the Commission was correct in concluding that the required causal connection between the employment and petitioners' injuries was not established. Kitchens v. Dep't of Labor Employ., supra.
[2] Further, "when the animosity or dispute that culminates in an assault is imported into the employment from claimant's domestic or private life, and is not exacerbated by the employment, the assault does not arise out of the employment under any test." 1 A. Larson, The Law of Workers' Compensation § 11.21; see Jackson v. Wilson, 84 Ga. App. 684, 67 S.E.2d 161 (1951).
Order affirmed.
JUDGE KELLY and JUDGE STERNBERG concur.