Opinion
W.C. No. 4-510-846
December 9, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which denied and dismissed his claim for workers' compensation benefits. We affirm.
The claimant was injured at work on July 31, 2001. The claimant testified he was injured when his head hit a concrete sidewalk. The claimant stated that a co-worker, Mike Fernandez, (Fernandez) grabbed him from behind and when he told Fernandez to release him, Fernandez "slammed me so I hit my head." (Tr. p. 42).
The respondents introduced Exhibit C, a recorded statement in which Fernandez stated that approximately 10 minutes before the end of the work-shift on July 31 he and several co-workers, including the claimant, went outside the employer's building for an unauthorized break. According to Fernandez, the claimant went outside to smoke, and he went outside to warm up his vehicle. During the break, Fernandez said he teased the claimant about his short stature and so the claimant kicked him. The teasing continued and when the claimant tried to kick him a second time he dodged causing the claimant to fall backward and hit his head on the concrete sidewalk.
Based on the recorded statement, the ALJ found Fernandez and the claimant were joking around, not fighting at the time of the injury. (Finding of Fact 6). Instead, the ALJ determined the claimant was injured while engaged in willful horseplay in violation of the employer's enforced personnel policy. Consequently, the ALJ determined the claimant was injured during a personal deviation which was so significant as to remove the claimant from the course and scope of his employment. Therefore, the ALJ concluded the injury was not compensable and denied the claim.
On review, the claimant contends he was where he had a "right to be" at the time of the injury and was performing a function for the employer because he was locking up and turning off lights. Therefore, he argues his injury arose out of the employment. The claimant also contends the ALJ erroneously considered Respondents' Exhibit C, misconstrued his answers to interrogatories, and erred in finding he was the instigator of the horseplay. We reject these arguments.
To recover workers' compensation benefits, the claimant must prove he sustained an injury arising out of and in the course of his employment. Section 8-43-301(1)(b), C.R.S. 2002. The "in the course of" test refers to the time, place, and circumstances of the injury. The "arising out of" test is one of causation, and requires that the injury have its origin in an employee's work-related functions and must occur while the claimant is "performing service" arising out of the employment. See Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991). Injuries do not arise out of and in the course of employment if, at the time of the injury, the employee is engaged in a personal deviation for his sole benefit. Kater v. Industrial Commission, 728 P.2d 746 (Colo.App. 1986).
In Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995), 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. 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 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."
The question of whether horseplay is a deviation significant enough to remove the claimant from the course and scope of employment is one of fact for determination by the ALJ. See Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, supra. Accordingly, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to view 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 ALJ's order reflects his consideration of the appropriate factors established in Lori's Family Dining, Inc., v. Industrial Claim Appeals Office, supra. Furthermore, the record supports the ALJ's determination that the claimant was injured during willful horseplay.
There was a direct conflict between Fernandez and the claimant concerning the circumstances which lead to the injury. The ALJ was not required to credit the claimant's testimony and expressly found that inconsistencies in the claimant's testimony raised "grave questions" about the claimant's credibility. (Finding of Fact 8); see also Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970).
In contrast, there is substantial evidence in the testimony of the employer's witness, Marilyn Giroux (Giroux), to support the ALJ's finding that the claimant was not performing any service for the employer at the time of the injury. Giroux testified that the claimant was not authorized to take a work break 10 minutes before the end of the work-shift, or exit the employer's building to have a smoke. Further, the ALJ reasonably inferred that it was unlikely the claimant was locking doors to the employer's building at the time of the injury while co- workers were outside and the shift had not ended.
There is also support for the ALJ's pertinent findings in the recorded statement of Fernandez, and we disagree with the claimant's contention that the statement was inadmissible hearsay. The Colorado Rules of Evidence 804(a)(5) provides that where the declarant is "unavailable" the declarant's "statement against interest" may be admitted. A "statement against interest" is a statement:
"which was at the time of its making so far contrary to the declarant's pecuniary or proprietary interest, or so far tended to subject him to civil or criminal liability, or to render invalid a claim by him against another, that a reasonable man in his position would not have made the statement unless he believed it to be true."
A declarant is considered "unavailable" if the declarant is absent from the hearing and the proponent of his statement has been unable to procure his attendance by process or other reasonable means.
Here, the matter was originally set for hearing on January 15, 2002. The record contains a Return of Service which indicates Fernandez was served with a subpoena to testify, but Fernandez did not comply with the subpoena. The matter was reset to January 23, 2002. The record contains a Return of Service that indicates four attempts to serve Fernandez with a subpoena to appear at the hearing on January 23, 2002, were unsuccessful. Under these circumstances, the record amply supports the ALJ's determination the respondents sustained their burden to prove Fernandez was "unavailable" within the meaning of C.R.E. 804(a)(5). (Tr. pp. 25, 54).
The claimant's arguments notwithstanding the ALJ also reasonably inferred that the recorded statement from Fernandez was a "statement against interest," even though she also found Fernandez had no "stake in the outcome" of the claimant's workers' compensation case. (Finding of Fact 8). The Human Resource Manager testified that Fernandez had previously been suspended from work and was suspended for the incident which resulted in the claimant's injuries. (Tr. pp. 66, 70). However, Fernandez was still an employee at the time the statement was given. Under these circumstances, his admission that he was taking an unauthorized break away from his work station and engaged in horseplay was contrary to his pecuniary interest.
The claimant's remaining arguments have been considered and are not persuasive. The ALJ did not find the claimant was the "aggressor" in the horseplay. Rather as we read the ALJ's order she determined Fernandez instigated the horseplay but found the claimant was a willing participant. ( See Finding of Fact 6). In any case, we know of no authority, and the claimant cites none, in support of his implicit contention that as long as the claimant did not initiate the horseplay he remained in the course of employment.
Moreover, the ALJ's finding that the claimant's testimony was inconsistent with his answers to the interrogatories is a plausible inference from the record. (Finding of Fact 8). In his testimony the claimant denied the injury occurred when he tried to kick Fernandez. (Tr. pp. 48, 49). However, he admitted in his signed answers to interrogatories that he "tried to kick" Fernandez. (Tr. p. 50).
IT IS THEREFORE ORDERED that the ALJ's order dated May 7, 2002, 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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed December 9, 2002 to the following parties:
Sinh Ngo, 3003 Valmont, #2, Boulder, CO 80301
Engineered Data Products Inc., 2550 W. Midway, Broomfield, CO 80020
American Compensation Insurance Co., P. O. Box 6541, Englewood, CO 80155
James R. Collins, Esq., 201 Fillmore St., #200, Denver, CO 80206-5015 (For Claimant)
Mark H. Dumm, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)
BY: A. Hurtado