Opinion
W.C. No. 4-269-589
April 30, 1997
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Gandy (ALJ) which determined that the claimant sustained a compensable injury and awarded temporary total disability benefits. We affirm.
The ALJ found that the claimant sustained burns to his body as a result of "horseplay" in which he participated. Crediting the claimant's testimony, the ALJ determined that it was common practice for employees of Standard Tire Service Center (Standard) to spray each other's pants with flammable brake cleaning fluid, and then ignite the fluid. In fact, the claimant testified that this activity occurred two or three times per week, and that Standard's owner, Thomas Barrett, had witnessed the activity.
The claimant testified that on October 2, 1995, co-worker Spencer sprayed him with fluid for approximately one-half hour. Finally, the claimant told Spencer he was tired and that it was time to go back to work. As the claimant turned to go back to work, Spencer ignited the fluid on the claimant's clothing causing the burns.
The ALJ found that the claimant was treated in the emergency room, and then hospitalized by Dr. Mebane. The claimant testified that he remained in the hospital for two days, and continued receiving treatment from Dr. Mebane until he was released to go back to work in January 1996. (Tr. pp. 24-25).
The claimant also testified that approximately two weeks after the accident he was discharged by Standard. The claimant testified that he was discharged for being an "insurance risk."
Under these circumstances, the ALJ concluded that the claimant sustained a compensable injury, and rejected the respondents' argument that compensability is barred by the "horseplay doctrine." Specifically, the ALJ found that employees of Standard regularly engaged in horseplay, and that this conduct was "tolerated" by Standard. The ALJ also found that, at the moment the co-worker ignited the claimant's clothing, the claimant had "withdrawn from participation in the horseplay and was returning to the regular duties of his employment."
The ALJ also concluded that the claimant was temporarily and totally disabled from October 3, 1995 until January 2, 1996. In so doing, the ALJ stated that there was "no evidence" that the claimant was terminated for fault.
I.
On review, the respondents contend that the ALJ erred in determining that the claimant's injury arose out of and in the course of employment. The respondents argue that application of the criteria established in Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995), establishes that the claimant engaged in non-compensable horseplay. In support of this conclusion, the respondents cite evidence that the horseplay continued for up to one hour, and that a supervisor told the claimant and the co-worker to stop spraying each other with the brake cleaning fluid. Moreover, the respondents argue that the evidence concerning Standard's tolerance of the horseplay is "contradictory at best." We perceive no error.
In Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, the court established a four-part test for determining whether horseplay constitutes such a substantial deviation from the employment as to render the injury non-compensable. The four criteria are as follows:
"(1) [T]he 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 duties; (3) the extent to which the practice of horseplay had become had 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."
In applying this test, the Lori's Family Dining court indicated that evidence of employer tolerance or awareness of horseplay is significant since it suggests that horseplay has become "a regular part of the employment," and is "sufficiently related to the circumstances under which" the employment is normally performed. We also note that employer tolerance suggests that the horseplay does not constitute a "serious" or "complete" deviation from employment, and indicates that horseplay is an accepted part of the employment. Further, sustained tolerance demonstrates that horseplay is to be expected in the employment.
Application of the four part test established in Lori's Family Dining is a factual issue for the ALJ. To the extent the ALJ's findings are supported by substantial evidence, we must uphold the order. Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, supra. The substantial evidence test requires that we view the evidence in a light most favorable to the prevailing party, and that we defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents' argument notwithstanding, there is substantial evidence in the record to support the ALJ's order. The claimant's testimony establishes that Standard employees regularly engaged in horseplay by snapping towels and spraying flammable brake fluid. The testimony also reveals that employees lit their pants on fire two or three times per week. (Tr. pp. 21-22).
Moreover, there is evidence that the owner of Standard was aware of this conduct, and that supervisor Garrison was also aware of it. Despite this fact, there is no evidence that the claimant or any other employee had been seriously disciplined as a result of this activity.
Under these circumstances, we must uphold the ALJ's determination that the type of horseplay which injured the claimant was a regular part of Standard's business environment, and that Standard tolerated the conduct. This evidence supports the conclusion that the claimant's activities did not constitute a serious or complete deviation from his employment. Moreover, as the ALJ found, there is evidence that the claimant was returning to the scope of employment at the time of the injury. Consequently, there is evidence of the type of "commingling" of horseplay and work contemplated by Lori's Family Dining.
It is true that some evidence in the record might support contrary findings and conclusions. However, that does not constitute a basis for appellate relief. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
We have also considered the respondents' assertion that the ALJ failed to resolve conflicts in the claimant's testimony. However, this assertion is based on the fact that the claimant's testimony was inconsistent with statements he made to the emergency room physicians, and arguably inconsistent with his statements to the employer. However, the ALJ explicitly credited the claimant's "testimony." Thus, it is clear that the ALJ resolved the pertinent conflicts in the evidence, and decided to credit the version of events which the claimant testified to at the time of the hearing. We may not interfere with the ALJ's decision to credit the claimant's hearing testimony merely because it is inconsistent with prior statements. See Colorado Springs Motor, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 914 (1965).
II.
The respondents next contend that the ALJ erred in awarding temporary total disability benefits because there is no evidence of medical restrictions imposed by the claimant's treating physician. In support of this contention, the respondents rely on our decision in Ray v. Martin Marietta Corp., W.C. No. 4-210-328 (March 22, 1995); aff'd., Ray v. Industrial Claim Appeals Office, Colo. App. No. 95CA0553, July 27, 1995 (not selected for publication). We perceive no error.
In Ray, we held that, considering § 8-42-105(3)(c), C.R.S. (1996 Cum. Supp.), a claimant is not entitled to temporary disability benefits unless he produces evidence of medical restrictions imposed by the treating physician. In upholding our decision, the court of appeals stated the following:
"We agree with the Panel's reasoning that because an attending physician's opinion that a claimant is able to return to work is sufficient to terminate temporary disability benefits, an attending physician's opinion that a claimant has never been disabled from regular employment is necessarily sufficient to preclude the initiation of temporary disability benefits."
The court went on to state that the claimant carries the burden to present "credible evidence, in the form of an opinion of her treating physician, that she physically could not work." See also, Burns v. Robinson Dairy, 911 P.2d 661 (Colo.App. 1995).
The respondents' argument notwithstanding, the record contains credible evidence that the claimant was medically restricted. As the ALJ recognized the claimant testified that he was hospitalized for at least two days. Necessarily then, the claimant was precluded from performing the duties of his regular employment. Moreover, the claimant testified that he received nursing care at home, and continued to treat with Dr. Mebane until he was released to return to work in January 1996. Under these circumstances, the ALJ could logically infer that the claimant was medically restricted from returning to work by the authorized treating physician, Dr. Mebane. We may not substitute our judgment for that of the ALJ concerning the weight and credibility of this evidence.
III.
The respondents' final contention is that the ALJ erred in finding that there was "no evidence" that the claimant was at fault for the separation. To the contrary, the respondents argue that Mr. Fisher testified that the claimant was discharged as a result of his horseplay. Consequently, the respondents argue that this case should be remanded for an analysis of the cause of the claimant's post-separation wage loss pursuant to PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). We are not persuaded.
Here, the ALJ determined that the claimant was totally disabled during the disputed period. As we have held, this finding is supported by substantial evidence in the record. Consequently, the claimant's wage loss was necessarily caused "to some degree" by the effects of the injury, regardless of whether the claimant was "at fault" for the separation. See Horton v. Dill, ___ P.2d ___ (Colo.App. 96CA0284, November 29, 1996).
Thus, to the extent the ALJ erred in finding that there was "no evidence" that the claimant was at fault, the error was harmless. Even if the claimant was at fault, PDM Molding, Inc. v. Stanberg would still require an award of temporary total disability benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated August 13, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
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. (1996 Cum. Supp.).
Copies of this decision were mailed April 30, 1997 to the following parties:
Leslie D. Lorentz, 18 Ash Ct., #18, Longmont, CO 80501
Standard Tire Service Center, 1000 N. Townsend Ave., Montrose, CO 81401
Kristi J. Coffin, Esq., 1319 8th St., Greeley, CO 80631 (For the Claimant)
Steven J. Picardi, Esq., 1660 Wynkoop St., #900, Denver, CO 80202-1197 (For the Respondents)
Colorado Compensation Insurance Authority, Attn: Laurie Schoder, Esq. (Interagency Mail)
By: _______________________________