Opinion
W.C. No. 4-459-337
April 30, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Snider (ALJ) which determined the claimant suffered compensable injuries during an assault at work, and awarded medical benefits. We affirm.
On June 26, 1999, the claimant suffered injuries during an assault while working as a cashier for the employer. The ALJ's pertinent findings of fact may be summarized as follows. On the morning of June 26, an acquaintance of the claimant called the employer's restaurant several times asking to speak with the claimant. The claimant knew the acquaintance suspected her boyfriend was having an affair with the claimant. The claimant was afraid of meeting with the acquaintance because the acquaintance had a reputation for drug abuse and violence. The claimant explained the situation to the assistant-manager on duty at the restaurant, who instructed employees not to give out the address of the restaurant to callers that day and to tell any person calling for the claimant that she was not in the restaurant. The assistant-manager also offered to let the claimant go home early or escort her to her car if the acquaintance came to the restaurant.
Despite these efforts, the acquaintance learned the location of the restaurant and appeared during the noon hour. When the claimant saw the acquaintance, she left her work station and went to the back of the restaurant to hide. The acquaintance then began yelling and demanding to see the claimant. This conduct was disturbing to the staff and customers. The claimant asked the assistant-manager to either tell the acquaintance to leave or to call the police. The assistant-manager refused, and directed the claimant to "take care of the situation." As a result, the claimant went back to her cashier's station. The ALJ found the aggressor came around the cash register and punched the claimant in the eye. The claimant was taken by ambulance to the emergency room where she was treated for a concussion.
Relying on the claimant's testimony, the ALJ found that but for the directive of the assistant-manager, the claimant would not have put herself in the position of having a physical confrontation with the acquaintance. Further, the ALJ determined that the directive of the assistant-manager was work-related because it was designed to end the disruptive behavior of the acquaintance, which was upsetting to the employer's customers and the restaurant staff. In this regard, the ALJ found that any employee would be furthering the employer's business by dealing with the disruptive behavior of the claimant's acquaintance, whether that employee knew her or not. Accordingly, the ALJ determined the claimant was furthering the employer's business by confronting the acquaintance, and that the injuries arose out of the employment.
The ALJ also determined the respondents did not designate a physician for non- emergency treatment of the injuries. Therefore, the ALJ determined the right to select the treating physician passed to the claimant, who selected Dr. Haney to treat the injuries. The ALJ's order required the respondents to pay medical benefits in the form of mileage to Dr. Haney's office.
On review, the respondents contend the ALJ's order "exaggerates" the evidence. The respondents contend that neither the claimant nor the assistant-manager feared for the claimant's safety. The respondents also contend that as a matter of law, there is insufficient evidence to support the ALJ's findings that the employment "exacerbated" the private dispute between the claimant and the acquaintance, such that the injuries "arose out of" the employment. We reject these arguments.
A compensable injury is one which arises out of and in the course of employment. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The "course of employment" requirement is met when the injury occurs within time and place limitations of employment. Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991). The respondents concede the claimant's injury occurred "in the course of employment."
The "arising out of" test involves a question of whether there is a sufficient causal relationship between the employment and the injury. The law has identified three categories of causation for willful work-place assaults. The first category is assaults that have an inherent connection to the employment because of "enforced contacts" which result from the duties of the job. In Re Questions Submitted by U.S. Court of Appeals, 759 P.2d 17, 23 (Colo. 1988); Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996) ; Rendon v. United Airlines, supra; 1 Larson, Larsons' Workers' Compensation Law, § 8.01(6)(a) (1999). The second category is assaults which result from a "neutral force." 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). A "neutral force" is one that is neither particular to the claimant nor the employment. The third category is assaults which are strictly the result of a private dispute which is imported to the work place. However, injuries resulting from a private dispute are compensable if the employment exacerbates the underlying dispute. In Re Questions Submitted by U.S. Court of Appeals, supra.
Here, it is undisputed that the initial hostility between the claimant and the acquaintance was the result of a private dispute imported to the work-place. Thus, the issue before the ALJ was whether the hostility was exacerbated by the employment. The resolution of this question is largely factual. See Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991). Consequently, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000.
We have reviewed the ALJ's findings of fact and the record. The respondents' arguments notwithstanding, the ALJ's pertinent findings of fact are plausible inferences from the claimant's unrefuted testimony. Moreover, the ALJ's findings support the conclusion that, despite the employer's awareness of the hostility between the claimant and the acquaintance, and the physical risks to the claimant, the employer exacerbated the conflict by requiring the claimant to put herself in close physical proximity of the acquaintance. Further, the employer did so to further a business purpose. See Rendon v. United Airlines, 881 P.2d 482 (Colo.App. 1994). Consequently, the ALJ did not err in finding a compensable injury. Triad Painting Co. v. Blair, supra. The respondents arguments to the contrary are not persuasive.
Moreover, the respondents' reliance on our conclusions in Novak v. Pueblo County, W.C. No. 4-251-989 (July 25, 1996), as authority for a contrary result, is misplaced. Based upon the facts as determined by the ALJ, Novak is factually distinguishable from the circumstances presented here. In Novak, there was no finding of any affirmative action by the employer which prevented that claimant from avoiding a confrontation with the attacker. To the contrary, the claimant in Novak was assaulted while taking an unauthorized break. Similarly, because In Re Questions Submitted by U.S. Court of Appeals, supra, did not involve a private dispute imported to the work-place, the respondents' attempt to analogize that case to the facts presented here, is without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated November 17, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
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. 2000. 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 April 30, 2001 to the following parties:
Jamie Smith, 2833 S. Reading Court, Denver, CO 80231
Fazoli's Restaurants, Inc., 5480 Wadsworth Bypass, Arvada, CO 80002-3734
Wausau Underwriters Insurance, 2000 Westwood Drive, P.O. Box 8017, Wausau, WI 54402-8017
Employers Insurance of Wausau, 10975 El Monte, Ste. 225, Overland, KS 66211-1497
Tim Guill, Esq., 3515 S. Tamarac Drive, Ste. 200, Denver, CO 80237 (For Claimant)
David Kroll, Esq., 1120 Lincoln Street, Ste. 1606, Denver, CO 80203 (For Respondents)
Laurence Rich, Esq., 5675 DTC Blvd., Ste. 210, Denver, CO 80111
BY: A. Pendroy