Opinion
W.C. No. 4-779-078.
April 21, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Broniak (ALJ) dated December 30, 2009, that determined the claimant did not commit a willful violation of a safety rule and was not responsible for termination of her employment. We affirm.
The claimant worked for the employer loading and unloading trailers at the employer's dock. The claimant sustained an industrial injury on November 10, 2008 when she was unhooking a movable ramp and a tractor-trailer driver pulled out causing the ramp to fall on her. The employer suspended the claimant pending its investigation into the injury. The employer terminated the claimant's employment based upon its determination that the claimant violated a safety rule. The ALJ found that the claimant did not receive proper training on the procedures for loading and unloading or attaching and detaching the movable ramps. The ALJ concluded that the respondents had failed to establish that the claimant willfully committed a safety rule violation. The ALJ also found that the respondents had failed to establish that the claimant was responsible for her termination from employment within the meaning of the termination statutes in the Workers' Compensation Act (Act). The ALJ awarded temporary total disability (TTD) benefits. The respondents bring this appeal.
The claimant, citing Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988), argues that because the respondents failed to procure transcript of the hearings we must presume the pertinent findings of fact are supported by substantial evidence. However, the record forwarded to us from the Office of Administrative Courts does contain a transcript of the October 16, 2009 hearing. We will therefore consider the transcript.
I.
The respondents first contend that the ALJ's determination that the claimant had not committed a safety rule violation is not supported by substantial evidence. Specifically, the respondents argue that the ALJ's finding that the claimant did not receive proper training on procedures for loading and unloading or attaching or detaching a movable ramp is not supported by substantial evidence. We are not persuaded by the arguments of the respondents.
Section 8-42-112(1)(b) C.R.S. permits imposition of a fifty percent reduction in compensation in cases of "willful failure to obey any reasonable rule" adopted by the employer for the claimant's safety. The term "willful" connotes deliberate intent, and mere carelessness, negligence, forgetfulness, remissness or oversight does not satisfy the statutory standard. Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968).
The claimant's conduct is "willful" if she intentionally does the forbidden act, and it is not necessary for the respondents to prove that the claimant had the rule "in mind" and determined to break it. Bennett Properties Co. v. Industrial Commission, supra; see also, Sayers v. American Janitorial Service, Inc., 162 Colo. 292, 425 P.2d 693 (1967) (willful misconduct may be established by showing a conscious indifference to the perpetration of a wrong, or a reckless disregard of the employee's duty to her employer). Willful conduct may be inferred from circumstantial evidence including the frequency of warnings, the obviousness of the danger, and the extent to which it may be said that the claimant's actions were the result of deliberate conduct rather than carelessness or casual negligence. Bennett Properties Co. v. Industrial Commission, supra; Industrial Commission v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952).
Under § 8-42-112(1)(b) it is the respondents' burden to prove every element justifying a reduction in compensation for willful failure to obey a reasonable safety rule. Triplett v. Evergreen Builders, Inc., W. C. No. 4-576-463 (May 11, 2004). The question of whether the respondents met their burden to prove a willful safety rule violation is generally one of fact for determination by the ALJ. Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo. App. 1995). Because the issue is factual in nature we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. This standard of review requires that we consider 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 respondents direct our attention to evidence that the claimant underwent a class on loading dock procedures and signed off on written material stating that she was trained in the loading dock procedures. Exhibit G at 87-88. The respondents point out that they had a written safety rule that vehicles being loaded/unloaded must be controlled to prevent movement, which could endanger employees. Exhibit G at 99. The respondents also point to evidence that after reading the policy the claimant signed a receipt acknowledging that information regarding loading dock procedures had been thoroughly explained to her. Exhibit G at 101. In addition the respondents noted that the claimant passed a written test with a 100 percent score and the test included a question regarding loading the trailer. Exhibit G at 93, 95.
However, the ALJ made the following findings of fact with record support. The examinations given the claimant did not test the claimant on the specific procedures for loading and unloading trailers using a movable ramp. Tr. at 56-57. Although the employer has a loading dock policy which dictates the steps an employee must take in order to prevent the movement of a vehicle, the policy does not specify the procedures for unloading trailers in the yard using a movable ramp. Tr. at 58-59. The claimant received no "hands on" training for loading and unloading trailers in the yard using the movable ramp. Tr. at 68, 70. The claimant testified that the only verbal training she received was from a co-worker who told her never to load or unload a trailer without a lock mechanism. Tr. at 70. The claimant had unloaded or loaded a trailer attached to the ramp approximately three or four times prior to her industrial injury. Tr. at 70. The claimant testified that it was physically impossible for her to remove the chains from the ramp without being underneath the ramp. Tr. at 75. Although the assistant safety and health manager testified regarding the correct six procedures for detaching a ramp, none of the policies, procedures, training materials or written examinations offered into evidence contained a list of these specific steps. Tr. at 59-60. The safety manager testified that the claimant reported to the employer's review committee that she had followed the correct procedures before, but the claimant denied this. Tr. at 76.
The ALJ made the following determinations. It was apparent that the claimant performed the required steps to remove the ramp from the trailer in the wrong order. However, the evidence is not persuasive that the claimant received proper training on the procedures for loading and unloading or attaching and detaching the movable ramp. Further, there was not persuasive evidence that the claimant willfully violated any rule by being underneath the ramp. The ALJ found the claimant's testimony, regarding her need to go under the ramp to disconnect the chains, was credibly persuasive and undisputed. Finally, the ALJ determined that there was no persuasive or credible evidence that any of the claimant's actions were willful.
The respondents contend that the ALJ incorrectly credited the claimant's testimony that she had to crawl underneath the ramp to disconnect the chains. We recognize that there was conflicting testimony, but the ALJ resolved those conflicts in the claimant's favor. The ALJ's credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo. App. 2000). Despite the assertions of the respondents, in our view there is substantial evidence, including the testimony of the claimant, the cross-examination of the assistant safety and health manager and the training documents, supporting the ALJ's determination that the claimant did not commit a willful violation of a safety rule.
II.
The respondents next contend that the ALJ erred in awarding temporary total disability (TTD) benefits because the claimant was responsible for her termination. We are not persuaded to interfere with the ALJ's determination.
Sections 8-42-105(4), C.R.S, and 8-42-103(1)(g), C.R.S. (referred to as the termination statutes), contain identical language stating that in cases "where it is determined that a temporarily disabled employee is responsible for termination of employment the resulting wage loss shall not be attributable to the on-the-job injury." In Colorado Springs Disposal v. Industrial Claim Appeals Office, 58 P.3d 1061 (Colo. App. 2002), the court held that the term "responsible" reintroduced into the Workers' Compensation Act the concept of "fault" applicable prior to the decision in PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). Hence the concept of "fault" as it is used in the unemployment insurance context is instructive for purposes of the termination statutes. In that context "fault" requires that the claimant must have performed some volitional act or exercised a degree of control over the circumstances resulting in the termination. Padilla v. Digital Equipment Corp., 902 P.2d 414 (Colo. App. 1995), opinion after remand, 908 P.2d 1185 (Colo. App. 1985). That determination must be based upon an examination of the totality of circumstances. Id. As the ALJ correctly recognized, the burden to show that the claimant was responsible for her discharge is on the respondents. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo. App. 2000).
The question whether the claimant acted volitionally or exercised a degree of control over the circumstances of the termination is ordinarily one of fact for the ALJ. Knepfler v. Kenton Manor, W.C. No. 4-557-781 (March 17, 2004). Accordingly, we must follow the same standard of review as outlined above and uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S; Metro Moving Storage Co. v. Gussert, supra.
Here, the ALJ made the following findings of fact regarding the issue of responsibility for termination. The ALJ found that the claimant acted volitionally when she used the incorrect procedure for detaching the ramp and that a violation of a safety rule could result in discipline. However, the ALJ also found that the evidence failed to establish that the claimant knew that the procedure she used was incorrect or that she was violating a safety rule when using the incorrect procedure. The ALJ specifically found that the respondents did not establish that the claimant underwent training on these specific procedures or that she knew her actions were likely to result in her termination. The ALJ determined that the claimant did not commit a volitional act that led to the termination and did not exercise a sufficient degree of control over the circumstances of her termination. The ALJ concluded that the respondents had failed to establish that the claimant was responsible for her termination from employment within the meaning of the termination statutes.
There was conflicting evidence, however, we may not substitute our judgment for that of the ALJ regarding credibility matters unless there is such hard, certain evidence contradicting the ALJ's determination that it would be error as a matter of law. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). We are again persuaded that the testimony of the claimant, the cross-examination of the assistant safety and health manager and the training documents constitute substantial evidence supporting the ALJ's determination. Therefore, we must uphold the ALJ's determination. Section 8-43-301(8).
Moreover, at this point it is undisputed that the employer terminated the claimant because of her injury-producing conduct; hence, the termination statutes are inapplicable. Colorado Springs Disposal v. Industrial Claim Appeals Office 58 P.3d 1061 (Colo. App. 2002).
IT IS THEREFORE ORDERED that the ALJ's order dated December 30, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
THIS PAGE INTENTIONALLY LEFT BLANK
TAMMY HORTON, 2015 8TH AVE, GREELEY, CO, (Claimant).
JBS SWIFT COMPANY,, GREELEY, CO, (Employer).
GALLAGHER BASSETT SERVICES, Attn: MS JACKIE BONAVIDA, ENGLEWOOD, CO, (Insurer).
SAWAYA, ROSE KAPLAN, Attn: BRITTON MORRELL, ESQ., GREELEY, CO, (For Claimant).
THOMAS, POLLART MILLER, LLC, Attn: EMILY F. AHNELL, ESQ., QUEBEC ST., GREENWOOD VILLAGE, CO, (For Respondents).