Opinion
W.C. No. 4-380-243
June 18, 1999.
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ) which reduced compensation by 50 percent for violation of a safety rule. The claimant contends that he withdrew from "horseplay" 45 minutes prior to his injury, and therefore, no penalty is appropriate. We affirm.
The ALJ found the employer had a written rule against employees engaging in "horseplay." Further, the ALJ found the claimant knew of the rule, and the rule was enforced by the employer.
On May 1, 1998, the claimant "squirted" a coemployee with a high-pressure air hose. The coemployee then waited for an opportunity to retaliate against the claimant. Approximately 45 minutes after the first incident the coemployee approached the claimant from behind and squirted the air hose. Some of the pressurized air entered the claimant's right ear causing injury.
The ALJ concluded that the claimant willfully violated the employer's rule against horseplay, and that the horseplay was a cause of the claimant's injury. Consequently, the ALJ reduced the claimant's compensation by 50 percent in accordance with § 8-42-112(1)(b), C.R.S. 1998.
On review, the claimant argues that the ALJ erred in imposing the penalty because he had "withdrawn" from the horseplay and returned to the scope of his employment. In fact, the claimant points out that he was performing his regular duties at the time the coemployee squirted him with the air hose. In support of this proposition, the claimant relies on our decisions in Lorentz v. Standard Tire Service Center, Inc., W.C. No. 4-269-589 (April 30, 1997), and Thomas v. Politte, W.C. No. 4-246-664 (December 15, 1995). We find no error.
Section 8-42-112(1)(b) provides for a 50 percent reduction in compensation "where injury results from the employee's willful failure to obey any reasonable rule adopted by the employer for the safety of the employee." The respondents bear the burden of proof to establish that the claimant's conduct was "willful," meaning that the conduct was the product of "deliberate intent." City of Las Animas v. Maupin, 804 P.2d 285 (Colo.App. 1990). Further, the respondents must demonstrate that the violation of the rule played a causative role in the injury. See Tatum-Reese Development Corp. v. Industrial Commission, 30 Colo. App. 149, 490 P.2d 94 (1971) (involving penalty for intoxication and decided under prior statute).
Resolution of these issues is factual in nature, and therefore, we must uphold the ALJ's order if supported by substantial evidence in the record. City of Las Animas v. Maupin, supra; § 8-43-301(8), C.R.S. 1998. Application of the substantial evidence test requires us to defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the evidence cited by the ALJ establishes that the claimant knew of the rule against horseplay, but nonetheless squirted air on the coemployee in violation of the rule. In these circumstances, the ALJ could plausibly infer that the claimant's conduct was willful. Stockdale v. Industrial Commission, 76 Colo. 494, 232 P. 669 (1925). The record also supports the inference that the claimant's violation of the rule played a causative role in the injury because it initiated retaliation by the coemployee. Indeed, it may be surmised that the employer's rule against horseplay was designed to prevent the type of cyclic practical jokes and retaliation which occurred here.
Our decisions in Lorentz v. Standard Tire Service Center, Inc., supra, and Thomas v. Politte, supra, are not authority to the contrary. Both of those cases concerned whether or not the claimants' withdrawal from horseplay permitted the respective ALJs to find that the subsequent injuries arose out of and in the course of employment for purposes of § 8-41-301(1)(b) and (c), C.R.S. 1998.
The question of whether a claimant's injury "arose out of employment" depends on whether there is a sufficient causal relationship between the duties and circumstances of employment and the claimant's activity so that the activity may be considered "as an incident of employment or a condition of the workplace." Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995). In Lori's Family Dining, Inc. 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.
However, the mere fact that a claimant's horseplay may have arisen out of employment for purposes of establishing compensability under § 8-41-301(1)(b) and (c) does not preclude the possibility that the horseplay violated a safety rule justifying a reduction in compensation under § 8-42-112(1)(b). Indeed, Lori's Family Dining, Inc. implicitly recognized that an injury which occurred during horseplay might be compensable, yet the claimant could be subject to a reduction in compensation for violating a safety rule. The court addressed these issues separately.
This point is better illustrated by Wild West Radio, Inc. v. Industrial Claim Appeals Office, 905 P.2d 6 (Colo.App. 1995). In Wild West the claimant, a traveling salesperson, became intoxicated while on an alleged personal deviation. However, the court upheld the ALJ's determination that the claimant's injuries sustained in an automobile accident were compensable because the claimant had returned to the employer's business at the time of the accident. Nevertheless, the court also recognized that imposition of a penalty under § 8-42-112(1)(c), C.R.S. 1998, based on the contention that the claimant's intoxication caused the accident, presented a distinct issue. The court stated that the Act "imposes penalties for misconduct that results in injuries, but it does not disqualify the claimant from all benefits." Id. at 9.
Here, as in Wild West, the claimant had returned to the scope of his employment at the time the coemployee squirted him with air causing the injury. Thus, the injury itself was compensable because it arose out of and in the course of employment. However, as in Wild West, the fact that the claimant had returned to the scope of employment did not preclude the ALJ from finding that the injury was causally connected to the claimant's prior violation of the employer's rule against horseplay. Thus, reduction of the claimant's compensation was proper under § 8-42-112(1)(b).
IT IS THERFORE ORDERED that the ALJ's order dated November 5, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
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. 1998.
Copies of this decision were mailed June 18, 1999 to the following parties:
Michael Amaya, 1302 Venice, Longmont, CO 80501
Applied Films Corporation, Attn: Leanne M. Schnader, Human Resources Administrator, 9588 I-25 Frontage Road, Longmont, CO 80504
S. Danfelser, Chubb Group of Insurance Companies, P. O. Box 6520, Englewood, CO 80155-6520
Richard E. Samson, Esq., 515 Kimbark, #105, P. O. Box 1079, Longmont, CO 80502 (For Claimant)
Katherine Markheim Lee, Esq. and Alyson A. Ray, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
By: A. Pendroy