Opinion
W.C. No. 4-368-112
July 29, 1999.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which imposed a 50 percent reduction in compensation for violation of a safety rule. The claimant argues the ALJ failed to determine whether the violation was "willful." We set the order aside and remand for entry of a new order.
On January 14, 1998, the day of the industrial injury, the claimant was already under a 40 pound lifting restriction imposed for a prior non-industrial back injury. The employer had a safety rule which required employees to comply with existing medical restrictions and seek assistance if any job duty required an employee to exceed a restriction. It is undisputed the claimant was aware of the employer's rule and had sought assistance on several occasions when he was required to lift items in excess of his restriction.
On January 14 the claimant was required to service an air conditioning unit by pouring chemicals into a tank of water. The claimant testified the chemicals were stored in a five-gallon plastic container, and he did not know how much a full container weighed. However, the claimant testified that he injured his back when he lifted a half-full container. The claimant testified that it was not unusual for the chemical containers to be half full because only a half container was used in order to maintain a proper dilution.
The employer's president testified that, according to the "mover," the chemical containers weigh 45 pounds when full. The president also testified that the cooling system in place on the date of the claimant's injury required the claimant to pour the full five gallons of chemicals into the water tank. The president stated that he would have known if the claimant was performing the procedure improperly because he would have been notified by a representative of the chemical company. (Tr. p. 54).
The ALJ credited the president's testimony concerning the weight of the chemical containers and the dilution process, and discredited the claimant's conflicting testimony. Under these circumstances the ALJ found the claimant violated the employer's safety by lifting a full container of chemicals weighing 45 pounds, and imposed a 50 percent reduction in compensation pursuant to § 8-42-112(1)(b), C.R.S. 1998.
On review, the claimant contends the ALJ erred in imposing a penalty because he made no finding concerning whether or not the claimant's violation of the safety rule was "willful" as required by § 8-42-112(1)(b). Because we conclude the ALJ's findings of fact are insufficient to permit appellate review, we remand for entry of a new order. Section 8-43-301(8), C.R.S. 1998.
As the claimant argues, § 8-42-112(1)(b) requires the respondents to prove that violation of the employer's safety rule was willful. Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995). Violation of a rule is not willful unless the claimant intentionally did the forbidden thing. Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968); Stockdale v. Industrial Commission, 76 Colo. 494, 232 P. 669 (1925). Thus, a violation which is the product of mere negligence, forgetfulness or inadvertence does not qualify as a "willful" violation. Johnson v. Denver Tramway Corp., 115 Colo. 214, 171 P.2d 410 (1946).
Here, as the claimant argues, the ALJ made no explicit finding of fact concerning whether or not the claimant willfully violated the employer's rule against lifting in excess of his medical restrictions. Although the ALJ explicitly discredited the claimant's testimony that the chemical container was half full, he did not determine whether the claimant knew the full chemical container weighed more than forty pounds. Although ambiguous, Finding of Fact 12 appears to credit the claimant's testimony to the extent he stated that he did not know how much a full container weighed. The mere fact the ALJ disbelieved the claimant's testimony that the container was half full does not resolve the issue of whether the claimant knew he was exceeding his restrictions when he lifted the full container. This is particularly true in light of the ALJ's finding that the claimant previously asked for assistance in cases where he knew he was exceeding his restrictions.
Apart from the claimant's testimony the record contains other evidence which could support an inference that any violation of the rule was not willful. In Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, supra, the court noted the most frequent ground for rejecting a finding of willfulness "is the lack of enforcement of the rule or policy by an employer with knowledge of and acquiescence in its violation." Here, the employer's president testified that he knew the five-gallon chemical containers exceeded the claimant's lifting restriction. It could also be inferred the president was aware the claimant had been lifting these containers for many months prior to the injury. (Tr. p. 44, 46, 51, 54) Nevertheless, there is no evidence the claimant was ever disciplined for this activity.
Under these circumstances, the matter must be remanded to the ALJ for a determination of whether the claimant's violation of the employer's safety rule was willful. On remand, the ALJ shall resolve the pertinent factual issues underlying this question.
IT IS THEREFORE ORDERED that the ALJ's order dated December 14, 1998, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
Copies of this decision were mailed July 29, 1999 to the following parties:
Edward Brown, 14455 E. 22nd Pl., Aurora, CO 80011
Great Peaks Inc., 747 Sheridan Blvd., #2A, Lakewood, CO 80214
Transportation Insurance/CNA, P.O. Box 17369 T. A., Denver, CO 80217
Kerry L. Sullivan, Esq., 1325 S. Colorado Blvd., #405, Lakewood, CO 80222 (For Claimant)
Douglas J. Kotarek, Esq., 40 Inverness Dr. East, Englewood, CO 80112 (For Respondents)
By: A. Pendroy