Opinion
W.C. No. 4-620-148.
September 28, 2005.
FINAL ORDER
The claimant seeks review of a supplemental order of Administrative Law Judge Jones (ALJ) which determined that the claimant failed to prove an injury during "horseplay" is compensable, and therefore, denied and dismissed the claim for workers' compensation benefits. We affirm.
To recover workers' compensation benefits, the claimant must prove he sustained an injury arising out of and in the course of his employment. Section 8-43-301(1)(b), C.R.S. 2005. The "arising out of" test is one of causation, and requires that the injury have its origin in an employee's work-related functions and must occur while the claimant is "performing service" arising out of the employment. See Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991).
In Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995), the court established a four-part test to determine whether a claimant's participation in horseplay is so far removed from the duties and circumstances of employment that it does not arise out of the employment. The four criteria are as follows:
"(1) the extent and seriousness of the deviation; (2) the completeness of the deviation, i.e., whether it was commingled with the performance of a duty or involved abandonment of duty; (3) the extent to which the practice of horseplay had become become an accepted part of the employment; and (4) the extent to which the nature of the employment may be expected to include some horseplay."
The following facts are undisputed. The claimant was employed as a lead worker in the employer's warehouse. Employees working in the warehouse carried box cutters to retrieve merchandise for customers. The employer's written personnel policy prohibited horseplay during work hours. The claimant was accidentally injured during "horseplay." Specifically, the claimant and a co-worker were using box cutters to try and slit each other's water bottles. The claimant slipped and cut his forearm on one of the box cutters. As a result of the incident, the claimant and the co-worker were discharged from employment.
The ALJ rejected the claimant's testimony that horseplay of the type the claimant was engaged in at the time of the injury was sanctioned by the employer. Instead, the ALJ determined the claimant was engaged in a serious deviation from his work. Therefore, the ALJ found the injury did not "arise out of" the employment and denied the claim in an order dated February 1, 2005.
The claimant timely appealed the February 1 order. On May 17, 2005, the ALJ issued the supplemental order which denied the claim on similar grounds and included additional findings and conclusions concerning the applicable law. The claimant appealed the May 17 order.
We note that the claimant's petition to review the supplemental order contains general allegations of error under § 8-43-301(8), C.R.S. 2005, and the claimant has not filed a brief in support of the petition to review the supplemental order. Therefore, we have relied on the claimant's brief in support of the February 1 order to ascertain the claimant's substantive arguments.
The claimant asserts that the ALJ erred as a matter of fact in finding that the horseplay was a personal deviation sufficient to remove him from the scope of employment where, as here, he was injured by a work tool, he was in the break area at the time of the accident, and horseplay was expected and accepted by the employer. In support, the claimant relies on evidence that no one was ever fired for engaging in horseplay until his injury.
The determination of whether horseplay is a deviation significant enough to remove the claimant from the course and scope of employment is binding on review if supported by the ALJ's findings. See Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, supra. Moreover, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The ALJ's supplemental order reflects her application of the appropriate factors established in Lori's Family Dining, Inc., v. Industrial Claim Appeals Office, supra, to the facts of this case. Furthermore, the record supports the ALJ's determination that the claimant was injured during horseplay which was not common to the employment.
We acknowledge, as argued by the claimant, that the employer's manager, Monte Caskey (Caskey), and warehouse manager, Aaron Hahn (Hahn) admitted it was not uncommon to see warehouse employees "screwing around," or "releasing energy" to reduce stress by giving bear hugs, tossing an employee's cap around, or snapping someone with a rubberband (Tr. pp. 31, 35, 39). Caskey also admitted that on the night of the claimant's injury, he did not attempt to stop the claimant and a co-worker from playing tug-of-war with a strap because it did not look dangerous. (Tr. p. 30). Further, Caskey and Hahn confirmed the claimant's contention that no one had been disciplined for horseplay prior to the claimant's injury.
However, regardless of evidence that some play was tolerated by the employer, the ALJ reasonably inferred that not all horseplay was accepted by the employer and that the employer did not directly or indirectly condone play involving box cutters. ( See Hahn testimony p. 48 that warehouse employees "razzing" each other was an accepted part of job). The ALJ's finding is supported by the claimant's admission that "sometimes [supervisors] would catch us playing and say `put it away.'" (Tr. p. 15). The finding is also buttressed by the testimony of the employer's witnesses that they never saw employees play with box cutters or engage in other conduct that would present a risk of injury. (Tr. pp. 32, 44). Moreover, the distinction supports the ALJ's determination that the particular horseplay which resulted in the claimant's injury was a "serious deviation" distinguishable from any common horseplay having its origins in the claimant's work related functions which were tolerated by the employer. See Conclusion of Law 7; Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (Panel may consider findings which are necessarily implied by the ALJ's order). The assertion that the claimant was injured with a work tool and was on break at the time of the injury does not persuade that a different conclusion is warranted.
IT IS THEREFORE ORDERED that the ALJ's supplemental order dated May 17, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Dona Halsey
Richard A. Alvarez, Fort Collins, CO, American Furniture Warehouse, Englewood, CO, Kathy Lindgren, G.E. Young and Company, Greenwood Village, CO, Bob L. Ring, Esq., Fort Collins, CO, (For Claimant).
Gregory K. Chambers, Esq., Denver, CO, (For Respondents)