Opinion
W.C. No. 4-363-140
March 29, 1999.
FINAL ORDER
Mesa Concrete (Mesa) and its insurer, State Farm Fire Casualty Company (collectively the respondents) seek review of an order of Administrative Law Judge Atencio (ALJ), which determined the claimant suffered a compensable injury and ordered them to provide workers' compensation benefits. We affirm.
On November 24, 1997, the claimant was employed as a concrete finisher for Mesa, which was one of several subcontractors at the job site where U.S. Homes was building houses. The ALJ found that the claimant began work at 8 a.m. laying cement for a driveway. At approximately 11 a.m. the claimant agreed to go next door and help Malone Construction raise a wall. The claimant was injured when the wall fell on him.
On conflicting evidence, the ALJ found that it is common in the construction industry for one subcontractor to assist another subcontractor, and that this practice provides a mutual benefit to the employers involved. The ALJ also found that the claimant's actions were consistent with that custom. Consequently, the ALJ found that the claimant was injured while performing an activity which was an accepted part of his employment, and therefore, suffered an injury arising out of and in the course of his employment with Mesa.
On review the respondents contend that the ALJ failed to apply the correct legal standard in determining that the claimant sustained a compensable injury. The respondents also contend the ALJ's findings of fact are insufficient to permit appellate review because the ALJ failed to determine whether the claimant's injuries occurred in the "course of" the employment. Further, the respondents contend the claim is factually indistinguishable from Olivas v. Norris Concrete Contractors, L.L.C., W.C. No. 4-312-963 (September 18, 1997), where we upheld a denial of benefits to a concrete worker who was injured while helping a framing subcontractor lift a wall. Therefore, they argue the ALJ erred in awarding benefits. We disagree.
As argued by the respondents, an injury must "arise out of and in the course of" employment to be compensable. Section 8-41-301 C.R.S. 1998; Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996). The "course of" employment requirement is satisfied when there is evidence the injury occurred within the time and place limits of the employment relationship. Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991). The "arising out of" requirement is satisfied when it is shown that the injury occurred during an activity that had sufficient connection with the employee's job-related functions to be considered part of the service provided to the employer. Price v. Industrial Claim Appeals Office, supra. However, the activity resulting in the injury does not have to be the product of a prescribed duty, nor does it have to confer a specific benefit on the employer. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985) ; University of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953). Rather, it is sufficient if the injury arises out of an activity which is reasonably incidental to the conditions and circumstances of the particular employment. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995).
Whether a particular activity has sufficient connection with the circumstances under which the employee usually performs his job so as to be "incidental" to the employment, or is a personal deviation from the employment, is dependent on whether the activity is a common, customary, and accepted part of the employment as opposed to an isolated incident. See University of Denver v. Nemeth 127 Colo. 385, 257 P.2d 423 (Colo. 1953) ; Lori's Family Dining, Inc., v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995); Northwest Conejo Fire Protection District v. Industrial Commission, 39 Colo. App. 367, 566 P.2d 717 (Colo.App. 1977), 2 Larson, Workers' Compensation Law, § 27.22(a) (1997). The respondents arguments notwithstanding, the ALJ's order expressly reflects her consideration of the applicable legal standard. See Conclusions of Law 1.
Furthermore, the question of whether the claimant has sustained his burden to prove that he was injured while performing an activity "incidental" to his employment is one of fact for resolution by the ALJ. Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991). Consequently, we must uphold the ALJ's findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. Under this standard we must defer to the ALJ's credibility determinations, her resolution of conflicts in the evidence, and plausible inferences the ALJ drew from the record. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
Contrary to the respondents' argument, the ALJ's findings implicitly reflect her determination that the claimant was in the "course and scope" of his employment at the time of the injury. In fact, the ALJ expressly rejected the argument that the claimant's actions occurred during a personal deviation. See Conclusion of Law 2; Summary Order, October 8, 1998, Finding of Fact 2. Instead, the ALJ was persuaded that the claimant's actions in helping the subcontractor were incidental to his regular job duties and did not violate any clear directive from Mesa limiting the sphere of employment. See Bill Lawley Ford v. Miller, 672 P.2d 1031 (Colo.App. 1983). Consequently, we decline to remand the matter for additional findings. See Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990) (ALJ's findings are sufficient if the basis for the decision is apparent).
We also conclude that the record contains substantial evidence, through the testimony of the Malone Construction witnesses Troy Malone (Malone) and Enrique Angulo (Angulo), that it is common and customary in the construction industry for subcontractors to assist one another. (Tr. pp. 36, 48). Therefore, we must uphold the ALJ's finding that the claimant was injured while performing an activity "incidental" to his job duties for Mesa. Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, 856 (Colo. 1983) (findings based on substantial, albeit conflicting, evidence are binding and the existence of conflicting evidence does not provide a basis for reversal). The ALJ's finding is buttressed by evidence that concrete workers from another subcontractor also assisted Malone Construction at the time of the claimant's injury. (Tr. pp. 17, 18, 48).
However, the respondents contend that the testimony of Malone and Angulo is biased and that their testimony is tainted by their interest in avoiding the imposition of liability on Malone Construction. Therefore, the respondents contend the ALJ erred in crediting their testimony. We disagree.
The ALJ's credibility determinations are binding unless the testimony credited by the ALJ is "so overwhelmingly rebutted by hard, certain evidence directly contrary" that the fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). We conclude that no such circumstances exist here.
There was a direct conflict between the testimony of the claimant's supervisor, Benjamin Quinones (Quinones), and the witnesses from Malone Construction concerning whether it was customary for subcontractors to assist other subcontractors at a construction site. The claimant's testimony corroborates the testimony of the Malone witnesses. (Tr. p. 22). Therefore, we cannot say that their testimony was "overwhelmingly rebutted by hard, certain" evidence, or that the ALJ erred as a matter of law in crediting their testimony.
Furthermore, the mere potential for bias does not render a witness incompetent. C.R.S. 601. Therefore, the fact that the Malone witnesses had an interest in the outcome of the litigation did not in and of itself preclude the ALJ from crediting their testimony. If this were dispositive of credibility, the ALJ would be equally precluded from crediting the testimony of the claimant's supervisor. Instead, the possible bias of the witnesses is simply one factor which the ALJ is entitled to weigh when determining credibility.
Alternatively, the respondents contend that evidence of the industry custom is irrelevant because Mesa did not participate in the custom of helping other subcontractors. In support, the respondents rely on Quinones' testimony that Mesa had an "unspoken" policy which prohibited its employees from helping other subcontractors and that the claimant did not have permission to violate the policy. (Tr. pp. 55, 59). Again we disagree.
Quinones admitted that during the eight days the claimant worked for Mesa, he never informed the claimant of the "unspoken policy." (Tr. p. 65). Furthermore, the record contains evidence that Quinones and all other Mesa employees left the job site before the claimant was asked to help Malone Construction, and thus, there was no one available to refuse permission for the claimant to help Malone. (Tr. p. 16). Under these circumstances, the evidence concerning the industry custom supports the ALJ's finding that lifting the wall was "incidental" to the claimant's employment.
Furthermore, our conclusions in Olivas v. Norris Concrete Contractors, L.L.C., supra, do not compel a contrary result. In Olivas, the claimant testified that he agreed to help a framing subcontractor lift a wall because he believed he was required to obey the subcontractor and that his employment would be jeopardized if he refused to help the other subcontractor. However, the claimant admitted that his employer never told him to obey the subcontractor, and therefore, an ALJ determined that the claimant's belief was unreasonable. Furthermore, in Olivas the claimant failed to prove that it was customary for subcontractors to assist other subcontractors on a construction site. Therefore, the Olivas case is factually distinguishable from this claim.
The respondents remaining arguments have been considered and do not alter our conclusions. The respondents contend that the ALJ's order creates an erroneous precedent which imposes liability on subcontractors for risks not covered by their workers' compensation insurance policy. The respondents did not present any evidence to support this factual assertion. In any case, the employer's liability is determined by the Workers' Compensation Act and not the extent of the coverage defined in the employer's workers' compensation insurance policy. Cf. State Compensation Insurance Fund v. Dean, 689 P.2d 1146 (Colo.App. 1984) (employer's liability may exceed coverage which is defined by the policy of insurance).
IT IS THEREFORE ORDERED that the ALJ's order dated November 12, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed MARCH 29, 1999 the following parties:
Eliseo Nava, 3927 Zuni, Denver, CO 80211
Mesa Concrete, Inc., c/o James R. Clifton, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227
Troy Malone, Malone Construction, 11629 E. Dakota Avenue, Aurora, CO 80012
Robert P. Koehler, Esq., 681 Grant Street, Denver, CO 80203
Curt Kriksciun, Esq., Colorado Compensation Insurance — Interagency Mail
Rhonda Norris, State Farm Fire Casualty Company, PO Box 280929, Lakewood, CO 80228
David L. Smith, Esq., 1700 Broadway Ste. 1700, Denver, CO 80290-1701
Raymond F Callahan, Esq., 3464 South Willow Street, Denver, CO 80231-4566
James R. Clifton, Esq., Harvey D. Flewelling, Esq., 5353 West Dartmouth Ave., #400, Denver, CO 80227 (For Mesa Concrete and State Farm)
BY: ______________