Summary
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.
Summary of this case from IN RE NAVA, W.C. NoOpinion
W.C. No. 4-312-963
September 18, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) which denied and dismissed the claim for workers' compensation benefits. We affirm.
An injury must "arise out of and in the course of" employment to be compensable. Section 8-41-301 C.R.S. 1997; Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996). An injury "arises out of" the employment when it is sufficiently related to the conditions and circumstances under which the employee usually performs his or her job functions to be considered part of the service provided to the employer. Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996). In this regard, the injury does not have to be the result of a mandatory employment activity. 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 a risk 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). This includes discretionary or optional activities on the part of the employee which are devoid of any duty component and are unrelated to any specific benefit to the employer. City of Boulder v. Streeb, 706 P.2d at 791.
This requirement is satisfied when it is shown that the injury occurred within the time and place limits of the employment relationship and during an activity that had some connection with the employee's job-related functions. Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991). Whether a particular activity has some connection with the employee's job-related functions as to be "incidental" to the employment is dependent on whether the activity is a common, customary, and an accepted part of the employment as opposed to an isolated incident. See Lori's Family Dining, Inc., v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995); 2 Larson Workers' Compensation Law, § 27.22(a) (1997).
The claimant sought compensation in connection with injuries he sustained on October 10, 1996. On that date the claimant was employed by Norris Concrete Contractors L.L.C. (employer), a subcontractor hired to perform concrete work in the construction of a new house. On October 10, the claimant and his co-workers set concrete for the new house. While waiting for the concrete to dry, the claimant agreed to help another subcontractor at the job site lift a wall onto the second floor of the house. The claimant was injured when the wall fell on him.
The claimant testified that he assisted the other subcontractor because the employer's owner, Darrell Norris, told him that the other subcontractor was in charge of the job site, and he believed his employment would be jeopardized if he refused to help the other subcontractor. Consequently, the claimant argued that he was injured while performing an activity "incidental" to his employment.
The ALJ rejected the claimant's contention. Specifically, the ALJ credited the testimony of Mr. Norris that he never told the claimant that the other subcontractor was in charge of the job site. The ALJ also credited evidence that the employer's business was limited to concrete construction; that there was no relationship between the employer and the other subcontractor; that erecting walls was not part of the claimant's job duties; and that the claimant was only hired and paid for concrete work. Furthermore, the ALJ found that there was no benefit to the employer from the claimant assisting other subcontractors.
Based upon these findings the ALJ determined that the claimant's action in lifting walls was not "interrelated" or "incidental" to the claimant's concrete and cement work in this employment. Therefore, the ALJ concluded that the claimant failed to sustain his burden to prove that his injuries arose out of and in the course of his employment.
On appeal, the claimant does not dispute the applicable legal standard. However, the claimant contends that the ALJ erred in finding that he failed to prove a compensable injury. We perceive no error.
The question of whether the claimant's injuries arose out of and in the course of employment is one of fact for resolution by the ALJ. Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991). Therefore, we are bound by the ALJ's factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. Furthermore, application of the substantial evidence test requires that we defer to the ALJ's credibility determinations, his 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).
Here, Mr. Norris denied telling claimant that the other subcontractor was in charge of the job site. (Tr. p. 23). Further, the claimant admitted that Mr. Norris never told him to help another subcontractor at the job site. (Tr. p. 11). Under these circumstances, the ALJ could, and did infer that it was unreasonable for the claimant to believe that the duties of his employment required him to obey the other subcontractor. See Chaney v. Industrial Commission, 120 Colo. 111, 207 P.2d 816 (Colo. 1949).
Moreover, there is substantial evidence in the record to support the ALJ's finding that helping other subcontractors on the job site was not incidental to the claimant's employment duties. The claimant stated that he was hired as a concrete finisher and was only paid for concrete work and other duties related to concrete work. (Tr. p. 11). Furthermore, Mr. Norris denied ever seeing the claimant or his co-workers help other subcontractors on the job site. (Tr. p. 22).
Nevertheless, the claimant contends that this claim is similar to the facts in Donahue v. City Center Chiropractic, Inc., W.C. No. 4-225-443, September 6, 1995, aff'd State Farm Fire Casualty Co., v. Industrial Claim Appeals Office, Colo. App. No. 95CA1668, March 21, 1996 (not selected for publication), where we upheld an award of compensation to a claimant who was injured while returning from lunch. We disagree.
The claimant in Donahue parked her car in front of the employer's office after returning from her scheduled lunch period on the date of the injuries. While walking from the parking space to the employer's front door, the claimant tripped and fell on the sidewalk. The ALJ found that the claimant had permission to park in front of the employer's office on the day of the injury, and that the damaged sidewalk constituted a "special hazard" which the claimant was required to traverse to perform the duties of her employment. Consequently, in Donahue the ALJ determined that the claimant's injuries occurred while she was performing a function inherently related to her employment.
Unlike the facts in Donahue, the ALJ in this case was not persuaded that assisting subcontractors was a function inherently related to the claimant's employment. As indicated above, we may not interfere with that factual determination. Furthermore, in this case, the claimant's injuries were not caused by a "special hazard" or risk of the employment. See Ramsdell v. Horn, 781 P.2d 150(Colo.App. 1989) (working on 25 foot scaffolding special hazard of employment). Thus, this case is factually distinguishable from Donahue.
The claimant further argues that his injuries are compensable under the "positional risk" doctrine. We reject this argument.
The "positional risk" analysis has been applied to circumstances where the origins of the injury are not incidental to the employment, and the only connection between the employment and the injury is the fact that the obligations of the work placed the claimant in the particular place where the claimant was injured by a "neutral force." Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991) ; In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17 (Colo. 1988). For example, the positional risk analysis has been applied to situations where stray bullets, rapists, and mentally deranged persons cause injures to employees while at work. H H. Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
Initially, we doubt the claimant's assertion that his injury was the result of a "neutral risk." A "neutral force" is one that is not particular to the claimant or his employment. 1 Larson Workers' Compensation Law, § 6.50 (1997). Here, the claimant was injured following his decision to help the other subcontractor. In other words, the causative factor in the claimant's injury was personal to the claimant in that an individual on the job site who did not choose to help the subcontractor lift the wall would not have been injured. Cf. Velasquez v. Industrial Commission, 41 Colo. App. 201, 581 P.2d 749 (Colo.App. 1978) (positional risk analysis not applicable to claimant who was shot by perturbed co-worker who believed the claimant was responsible for making obscene call to the co-worker's wife). Under these circumstances, we reject the claimant's assertion that "but for" the requirements of his employment as a concrete finisher, he would not have been injured. See Younger v. City and County of Denver, supra.
In any case, the ALJ determined that the "obligations" of the claimant's employment did not place him at the particular place where the claimant was injured. In fact, the ALJ credited Mr. Norris's testimony that instead of resting or helping the other subcontractor, the claimant could have been performing some clean up work while waiting for the concrete to dry. (Finding of Fact 3). Thus, the "positional risk" analysis of compensability is not applicable.
The claimant's remaining arguments have been considered and are not persuasive.
IT IS THEREFORE ORDERED that the ALJ's order dated February 4, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill WhitacreNOTICE 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 September 18, 1997 to the following parties:
Jesus J. Olivas-Ruiz, 4500 19th St., #178, Boulder, CO 80304
Darrell Norris, Norris Concrete Contractors, L.L.C., 190 S. 36th St., Boulder, CO 80302
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Michael P. Dominick, Esq., 250 Arapahoe Ave., #301, Boulder, CO 80302 (For the Claimant)
Joel M. Pollack, Esq., 999 18th St., #3100, Denver, CO 80202 (For the Respondents)
BY: _______________________________