Opinion
W.C. No. 4-455-463
May 8, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which awarded temporary disability benefits for a knee injury. The respondents contend the ALJ erred in finding the injury arose out of the employment. We disagree and therefore, affirm.
On March 13, 2000, the claimant, who is a cigarette smoker, began work as a package auditor for the respondent-employer on assignment at a UPS facility. The UPS facility had a designated smoking area outside the building. The smoking area consisted of a platform outside the building, and a set of stairs going down to a paved area at the bottom. The stairs had railings on both sides, and there was a garbage can and cigarette receptacle on the paved area below the platform.
When the 10-minute shift break was announced during the claimant's shift on March 13, he followed some other employees to the designated smoking area. The ALJ found that some employees were sitting on the steps, and that to get to the paved area below, the claimant would have had to ask the employees to move, squeeze between the employees sitting on the stairs, or vault over the stair railings. On conflicting evidence, the ALJ found the claimant vaulted over the railing and garbage can, and injured his knee when he landed. The ALJ determined the claimant was injured during horseplay, but the claimant's conduct was not "reckless or unreasonable." Further, the ALJ determined the conduct was an "insubstantial deviation" from the employment. Therefore, the ALJ determined the injury arose out of the employment.
To prove a compensable injury, the claimant must establish that the injury arose out of and in the course of employment. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The "in the course of" test refers to the time, place, and circumstances of the injury. See Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991). 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. Section 8-41-301(1)(b), C.R.S. 2000.
The respondents do not dispute the claimant was injured in "the course of" employment. However, the respondents contend the ALJ made no specific findings of any causal connection between the employment and the injury. Therefore, they contend the ALJ's findings of fact do not support the ALJ's determination that the claimant proved a compensable injury. The respondents further contend that any implied finding of a causal relationship between the employment and the injury is not supported by the record because the claimant was not performing a service of benefit to the employer during the horseplay. We reject these arguments.
The determination of whether there is a sufficient "nexus" or causal relationship between the claimant's employment and the injury is one of fact which the ALJ must determine based on the totality of the circumstances. In Re Question Submitted by the United States Court of Appeals, 759 P.2d 17 (Colo. 1988); Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996). We must uphold the ALJ's determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. Under this standard, we are bound by the ALJ's plausible inferences from the record. See Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998).
Contrary to the respondents' arguments, there is no requirement that the activity giving rise to the injury be a strict duty or obligation of employment for the injury to arise out of the employment. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). 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 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, supra; L.E.L. Construction v. Goode, 849 P.2d 876 (Colo.App. 1992), rev'd on other grounds 867 P.2d 875 (Colo. 1994) (claimant sustained fatal compensable injuries while traveling between the job site and the employer's main office to pick up a paycheck). In fact, 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).
Furthermore, the ALJ is not held to a crystalline standard in articulating the basis for his order. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). Rather, the ALJ's findings are sufficient if the basis of the order is apparent from the order. Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990).
Here, the ALJ's order reflects his recognition and proper application of the "arising out of" test. (Conclusions of Law 4). Moreover, the ALJ expressly found there was no substantial deviation from the employment. It follows, the ALJ was necessarily persuaded the claimant was engaged in work-related functions prior to the deviation. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (Panel may consider findings which are necessarily implied by the ALJ's order).
Further, the ALJ expressly found the employer had a fixed time for employee breaks and a designated area for employees who wanted to smoke during their break. (Finding of Fact 2, 3) Under these circumstances, we conclude the ALJ implicitly determined that the injury during an authorized break in the designated smoking area was incidental to the claimant's employment. This finding is supported by substantial evidence in the record.
Similarly, we find no basis on which to interfere with the ALJ's finding that the horseplay did not sever the causal connection between the employment and the injury. 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 for determining whether horseplay constitutes such a substantial deviation from 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 had 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 ALJ considered the appropriate factors established in Lori's Family Dining, Inc., v. Industrial Claim Appeals Office, supra. Further, there is substantial evidence in the testimony of the claimant and Gary Bueno to support the ALJ's finding that the steps leading down to the paved area were blocked by employees. (Tr. pp. 14; Bueno depo. pp. 11, 17-18, 40). Consequently, the existence of contrary evidence in the testimony of Timothy Anderson is immaterial on review. See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
Admittedly, the claimant testified that in hindsight, he should not have attempted to vault over the railing. Nevertheless, the injury occurred on the claimant's first day on the job, with new co-workers. Consequently, the ALJ could reasonably infer that the claimant's decision to vault the railing was a momentary act of "simple negligence," which was neither prolonged, geographically distant from the work site, extensive, or serious (even though the ultimate affect on the claimant's knee was serious). We have no authority to reweigh the evidence on review. Moreover, we decline the respondents' request that we substitute our judgment for that of the ALJ concerning whether the claimant's actions amounted to a "reckless" or "unreasonable deviation. See Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
Finally, Lori's does not hold that any one factor is dispositive of whether the injury arose out of the employment. To the contrary, the determination of whether the deviation removed the claimant from the compensable scope of the employment is a question of fact which must be resolved based upon the totality of circumstances. Therefore, we reject the respondents' argument that Lori's precludes the finding of a compensable injury where, as here, the claimant is injured during an isolated deviation from employment.
To the extent the respondents have further arguments they are not persuasive.
IT IS THEREFORE ORDERED that the ALJ's order dated October 20, 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 May 8, 2001 to the following parties:
Russell Wallace, 1010 Clarkson St., #301, Denver, CO 80218
Personnel Pool Inc., John Rimblas, Norrell Corporation, 441 Wadsworth Blvd., #102, Lakewood, CO 80226
Insurance Company of the State of Pennsylvania, AIG Claim Services, P. O. Box 32130, Phoenix, AZ 85064
Nhu Miller, Specialty Risk Services, Inc., P. O. Box 22815, Denver, CO 80222
Robert J. Erickson, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Royce W. Mueller, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy