Opinion
W.C. No. 4-251-989
July 25, 1996
FINAL ORDER
Claimant seeks review of an order of Administrative Law Judge Henk (ALJ) which denied and dismissed his claim for workers' compensation in connection with injuries sustained during an assault. We affirm.
For the claimant's injuries to be compensable, he was required to prove that the injuries arose out of and in the course of his employment. Section 8-41-301 C.R.S. (1995 Cum. Supp.); Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991). The "course of employment" requirement is met when the injuries occur during the time and place limits of the employment. Popovich v. Irlando, supra. Injuries "arise out of" the employment when the activity giving rise to the injuries is sufficiently interrelated to the conditions and circumstances under which the claimant generally performs his job, that the activity may reasonably be characterized as an incident of employment. Price v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo. No. 95SC303, June 17, 1996).
An assault is considered to "arise out of" the employment if the underlying dispute giving rise to the assault has an inherent connection to the employment, or is the result of a "neutral force" under a "positional risk" analysis. See Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991); In Re Questions Submitted by U.S. Court of Appeals, 759 P.2d 17 (Colo. 1988). However, where the assault arises from an inherently private dispute imported into the employment and is not exacerbated by the employment, the resulting injuries are not compensable. In Re Questions Submitted by U.S. Court of Appeals, supra.
Here, the claimant was employed by the Pueblo County Assessor's office. On May 5, 1995, at approximately 9:30 a.m., while taking a morning rest break with another worker (Mrs. Alfonso), the claimant was assaulted by Mrs. Alfonso's husband. The ALJ found that the claimant's injuries were the result of a personal dispute imported into the workplace, which was not exacerbated by the employment. Further, relying upon Velasquez v. Industrial Commission, 41 Colo. App. 201,581 P.2d 748 (1978), the ALJ determined that the injuries were not compensable under a "positional risk" analysis. Consequently, the ALJ denied the claim.
In support of the ALJ's determinations, she made the following factual findings. Mrs. Alfonso was employed by the Pueblo County Treasurer's Office. The marriage of Mr. and Mrs. Alfonso was stressful. The claimant and Mrs. Alfonso had known each other for several years and had developed a personal friendship in which they would confide in each other and socialize both during and after work. Mr. Alfonso told the claimant that he did not want his wife to socialize with the claimant. Mr. Alfonso told his wife that he believed that she and the claimant were "more than just friends." Despite these comments, the claimant and Mrs. Alfonso continued to socialize together. On at least one occasion, the claimant and Mrs. Alfonso socialized, without Mr. Alfonso, on a Saturday night at a bar/night club.
On May 5, at approximately 9:00 a.m., Mr. Alfonso called his wife at her job. During the conversation, Mrs. Alfonso told her husband that she did not want to talk to him and hung up. Both she and Mr. Alfonso were upset by the conversation. At 9:30 a.m., the claimant and Mrs. Alfonso met for a morning rest break outside the employer's building. Unbeknownst to them, Mr. Alfonso came to the workplace looking for Mrs. Alfonso. Upon finding the claimant and Mrs. Alfonso together, Mr. Alfonso stated, "[y]ou can't talk to me but you can talk to others." He then proceeded to assault the claimant.
I.
On appeal, the claimant contends that even if the assault was motivated by a personal dispute imported to the workplace, the evidence establishes that the employment exacerbated the dispute. Accordingly, the claimant argues that the ALJ erroneously determined that the claimant's injuries did not arise out of the employment. We disagree.
Whether the assault was sufficiently related to the employment is a factual determination for the ALJ to make, based upon the totality of the circumstances of the individual case. See Ferris v. Bakery, Confectionery Tobacco Union, 867 P.2d 38 (Colo.App. 1993); Triad Painting Co. v. Blair, supra. Consequently, where the ALJ's determination is supported by substantial evidence in the record, it is binding on review. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).
Application of the substantial evidence test requires that we defer to the ALJ's credibility determinations, her resolution of conflicts in the evidence, and her assessment of the sufficiency and probative value of the evidence she found persuasive. Christie v. Coors Transportation Co., __ P.2d __ (Colo.App. No. 95CA0581, December 7, 1995), cert. granted July 1, 1996. Accordingly, the fact that the record contains some evidence which, if credited, might support a contrary result is immaterial on review. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
Here, the testimony of the claimant, his supervisor, and Mrs. Alfonso contain substantial support for the ALJ's factual determinations concerning the motivation for the assault. Further, the ALJ's findings support her determination that the employment did not exacerbate the personal dispute over the social relationship which prompted the assault.
Next, we reject the claimant's contention that the ALJ erred in relying upon the conclusions in Velasquez v. Industrial Commission, supra. The claimants in Velasquez were shot by a co-worker who believed that the claimants had made obscene calls to the co-worker's spouse. The injuries were found to be the result of a personal dispute which was imported to the work site and not exacerbated by the employment. Consequently, the injuries were not considered to be the result of a compensable assault.
Here, the ALJ determined that, similar to the circumstances in Velasquez, the hostility between the claimant and Mr. Alfonso did not involve an employment dispute. In fact, Mr. Alfonso was not even a co-worker. Rather, the ALJ determined that the dispute arose from Mr. Alfonso's objection to the claimant socializing with his wife, some of which occurred after work.
Moreover, we disagree with the claimant's assertion that the circumstances presented in Velasquez are distinguishable because the claimant's employment placed him at the particular place and time where he was assaulted by Mr. Alfonso . The ALJ was persuaded by the testimony of the claimant's supervisor that the claimant was assigned a break at 8:00 a.m. and that the employer did not tolerate violations of the break policy. Further, the ALJ found that the claimant had not obtained permission to change his break period on May 5 to 9:30 a.m., and was subsequently disciplined for a violation of the break policy on May 5.
Based upon these findings the ALJ could, and did, infer that the assault occurred during an unauthorized morning rest break. It necessarily follows that the claimant's employment did not require him to be with Mrs. Alfonso in the break area at 9:30 a.m. To the contrary, the ALJ's findings suggest that the claimant would not have been assaulted had he followed the rules and regulations of his employment.
For the same reason, we reject the claimant's argument that whenever work associations put an employee "in the path of an irrationally jealous husband, an assault by the husband should be compensable." See A. Larson, Workmen's Compensation Law, § 11.23(d) (1996). The ALJ implicitly determined that the employment did not put the claimant in Mr. Alfonso's path on May 5. Rather, the ALJ's findings reflect her determination that the claimant became the object of Mr. Alfonso's hostility as a result of the claimant's personal decision to continue socializing with Mrs. Alfonso over her husband's objection, and his decision to take an unauthorized rest break with Mrs. Alfonso. We are not persuaded that Professor Larson's comment was intended to apply to the circumstances found by the ALJ.
Nor do we agree with the claimant's assertion that this claim is analogous to the facts presented in Rendon v. United Airlines, 881 P.2d 482 (Colo.App. 1994). The claimant in Rendon was found to have sustained compensable injuries when he was assaulted by co-workers due to their hostility towards the claimant's homosexuality. Unlike the circumstances in Rendon, the claimant's employment did not compel an association or social contact between the claimant and Mr. Alfonso. Further, the ALJ's findings support the conclusion that the assault did not result solely from "obligations of the employment that [compelled] an association" between the claimant and Mrs. Alfonso. See Rendon v. United Airlines, 881 P.2d at 485. Rather, the focus of the dispute between Mr. Alfonso and the claimant was the voluntary socializing between the claimant and Mrs. Alfonso, some of which occurred outside of the employment. Thus, this claim does not involve an assault arising from "enforced contacts" between employees, as was the case in Rendon.
II.
Relying on Ramsdell v. Horn, 781 P.2d 150 (Colo.App. 1989), the claimant also argues that it is immaterial whether he took his morning rest break at his assigned time, and that the ALJ erroneously relied on this factor. The claimant further relies upon case law which suggests that injuries sustained on the employer's premises during a work break are considered to have occurred in "the course of" employment.
Admittedly, activities such as resting, toileting, seeking fresh air and getting a drink of water are considered incidental to employment under the "personal comfort doctrine." See University of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953). Accordingly, an employee is considered to be within the course of employment while engaged in these activities. Here, however, we do not understand the ALJ to have determined that the claimant was not in the course of his employment because he was on a rest break. Although the ALJ found that the claimant was not performing any work-related duties and was not conferring a benefit on the employer, as we understand this finding, it pertains to the issue of whether the employment placed the claimant at the particular place and time where he was assaulted, under a positional risk analysis.
Nevertheless, even if we were to conclude that the ALJ erroneously determined that the claimant was outside the course of his employment at the time of the assault, that conclusion would not afford us a basis for disturbing the ALJ's order. The ALJ found that the injuries did not "arise out of" the employment, and this determination is alone sufficient to defeat the claim for compensation. Consequently, the ALJ's error, if any, concerning whether the claimant was "in the course of" his employment at the time the assault, is harmless, and must be disregarded. See § 8-43-310 C.R.S. (1995 Cum. Supp.), A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ's order dated October 12, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona HalseyNOTICE 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. (1995 Cum. Supp.).
Copies of this decision were mailed July 25, 1996 to the following parties:
Dennis J. Novak, 3428 Pecan Drive, Pueblo, CO 81005
Pueblo County, 320 W. 10th St., Pueblo, CO 81003-2940
OHMS, Attn: Norma Sanchez, 700 Broadway, #1132, Denver, CO 80273
Michael W. Seckar, Esq., 402 W. 12th St., Pueblo, CO 81003 (For the Claimant)
David J. Dworkin, Esq. Scott L. Evans, Esq., 3900 E. Mexico, #1300, Denver, CO 80210 (For the Respondent)
BY: _______________________