Opinion
W.C. No. 4-820-253.
January 14, 2011.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated June 23, 2010, that found the claim compensable and ordered the insurer to pay for medical care provided by Concentra. We affirm.
The claimant worked for the employer as a groundskeeper of a mall. As part of his duties the claimant drives a golf cart around the outdoor mall area to collect trash. On March 6, 2010 while driving the golf cart the claimant was startled when a large red truck drove close and fast by him with the horn honking. The claimant swerved onto the curb jarring and injuring himself.
The ALJ found that the claimant had established that the injury he sustained on March 6, 2010 arose out of and in the course of his employment. Therefore the ALJ found the claim was compensable and ordered payment of certain medical treatment the claimant received from Concentra. The respondents bring this appeal contending that the ALJ erred in finding the claim compensable and requesting that his order be reversed.
We initially note that the phrases "arising out of and "in the course of used in the Colorado's Workers Compensation Act (Act) are not synonymous. In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17, 20 (Colo. 1988)( Tolbert). A workers' compensation claim must meet both requirements to be covered by the Act. Younger v. City County of Denver, 810 P.2d 647, 649 (Colo. 1991). An injury occurs "in the course of employment when it takes place within the time and place limits of the employment relationship and during an activity connected with the employee's job-related functions. Popovich v. Irlando, 811 P.2d 379, 381 (Colo. 1991).
Here, the incident on March 6, 2010 occurred while the claimant was driving a golf cart in the course of his employment. Thus, the incident was clearly within the time and place limits of the employment relationship, during an activity connected with the employee's job-related functions, and thus it occurred in the course of employment. Therefore, we address the issue of whether the injury arose out of the employment.
The term "arises out of refers to the origin or cause of an injury. Deterts v. Times Publ'g Co., 38 Colo. App. 48, 51, 552 P.2d 1033, 1036 (1976). There must be a causal connection between the injury and the work conditions for the injury to arise out of the employment. Younger v. City County of Denver, supra. An injury "arises out of employment when it has its origin in an employee's work-related functions and is sufficiently related to those functions to be considered part of the employee's employment contract. Popovich v. Irlando supra.
Initially, we note that the ALJ characterized the incident where the truck drove closely past the claimant's golf cart as an "assault" and therefore the ALJ applied the law applicable to assaults to his analysis. Although we question whether the incident was properly determined to be an "assault," no party has argued that it was not or that the ALJ erred in applying those legal standards. Because of that we have reviewed the order in light of the law related to the compensability of injuries resulting from assaults. In any event, even were the incident leading to the claimant's injury not characterized as an "assault," we would affirm the order on the grounds that the injury arose out of the claimant's work.
Whether a workplace assault arises out of the employment depends on which of three categories the assault falls into. Popovich, 811 P.2d at 383 (explaining the test as established in Tolbert, 759 P.2d at 23-24). Those assaults that have an inherent connection with the employment, or those assaults that are neutral, arise out of employment for purposes of workers' compensation coverage. Only those assaults that are inherently private are not covered by the Act. Popovich
Determining the motivation for a work-place assault is largely a factual issue and must be ascertained by examining the circumstances in each individual case. See Popovich v. Irlando, supra; See Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991); Ferris v. Bakery, Confectionery Tobacco Union, 867 P.2d 38 (Colo. App. 1993); Garruto v. Corporate Express, W. C. No. 4-494-672 (March 25, 2002). 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. Application of the substantial evidence test requires that we defer to the ALJ's credibility determinations, his resolution of conflicts in the evidence, and his assessment of the sufficiency and probative value of the evidence he found persuasive. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998); Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo. App. 1993). 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 ALJ found that the claim here involved the first category of assaults. The first category includes assaults that have an inherent connection to the employment. Inherently employment-related torts are those that "have an inherent connection with employment" and emanate from "the duties of the job." Tolbert. Under this category injuries suffered during an assault are compensable if the assault grew out of an argument over performance of work, possession of work tools or equipment, delivery of a paycheck, quitting or being terminated. Id. The ALJ determined that there was an inherent connection to the employment because of enforced contacts which resulted from the duties of the job.
We note that there was a second incident on the day following the March 6, 2010 golf cart incident when the claimant testified that he was involved in an argument between the claimant and the driver and passenger of the red truck. The ALJ found that the claimant did not, outside of work, have any contact with the driver of the red truck, Silverio Calihua or Jeronimo Calihua, who was involved in the argument on the second day. We do not further address the events that occurred on March 7, 2010 because the ALJ found that there was no additional injury to the claimant and no party has disputed this finding on appeal.
The respondents contend that the ALJ's conclusion that the March 6, 2010 assault had an inherent connection with the claimant's work related functions is not supported by the findings of fact or the evidence. The respondents contend that the ALJ made no findings to support his conclusion that the assault that occurred on March 6, 2010 between the claimant and Silverio Calihua had its basis in any work functions. The respondents contend that the only finding made by the ALJ was that the two had no contact outside of work and that the two had been brought together by separate employments at the same mall.
The respondents contend that the evidence supported a finding that the claimant and Silverio Calihua had prior relations with one another and the nexus of the alleged assault on March 6, 2010 was personal in nature and did not have its origins in the claimant's work-related functions, and was not sufficiently related to those functions to be considered part of the claimant's employment contract. The respondents contend that the ALJ erred in concluding that Horodyskyj v. Karanian, 32 P.3d 470 (Colo. 2001) does not apply to the facts of the present case.
The ALJ, in his order, did note that the respondents had cited Horodyskyj for the proposition that more is required than a finding that work brought the employees together. The ALJ noted that Horodyskyj concerned sexual harassment or sexual assault in the work place and that much of the court's reasoning was specific to cases involving sexual harassment or assault. The ALJ determined that Horodyskyj did not to apply to cases such as the present case which did not concern sexual assault or harassment. The ALJ found that there was an inherent connection to the employment because of enforced contacts which resulted from the duties of the job
We disagree with the respondents that Horodyskyj require s a different result in the present case. In Horodyskyj, the supreme court held that sexual harassment by one employee of another is inherently personal, does not arise out of employment, and, thus, is not compensable under the Workers' Compensation Act. The court reasoned that acts of sexual harassment are not neutral and have no connection to the employment.
We do not view Horodyskyj as creating a new test for causation such that we must reverse the ALJ's determination because he failed to follow Horodyskyj. In Horodyskyj, the supreme court explicitly relied upon the test for work place assaults previously announced in Tolbert supra, and explained by Popovich v. Irlando, supra. Moreover, the court in Horodyskyj articulated a rule specifically applicable to sexual harassment and related torts, which are not at issue here.
We note that Chief Justice Mullarkey in delivering the opinion in Horodyskyj stated that the court addressed the relationship between workers' compensation laws and on-the-job sexual harassment inflicted by one employee upon another. The court specifically held that injuries resulting from workplace sexual harassment are not compensable under the Workers' Compensation Act and, therefore, an employee's tort claims based on sexual harassment are not barred by the exclusivity provisions of the Act. The workers' compensation claim under consideration here is not premised on "sexual harassment." In our opinion the ALJ's analysis of the compensability issue does not violate the holding in Horodyskyj.
The respondents cite Jackson v. Curtis Maddox W.C. No. 4-719-337 (June 12, 2008) which did not involve sexual harassment but in which we cited Horodyskyj for the proposition that assaults that are inherently private do not arise out of the employment for the purposes of the Act. However, here the ALJ, as the fact finder in determining the motivation for a work-place assault, examined the three categories that assault falls into and decided the assault here had an inherent connection with the employment. It is clear to us that the ALJ was not persuaded that the assault was inherently private and therefore not covered by the Act.
The respondents cite Shirzadian v. University of Colorado, W. C. No. 4-619-435 (February 13, 2006); aff d Shirzadian v. Industrial Claim Appeals Office No. 06CA0409 (Colo. App. October 12, 2006) (not selected for publication) in which we cited Horodyskyj for the proposition that in assault cases the concept of "neutral force" should be followed. Here the ALJ properly noted the three categories of assault including those assaults that are neutral. We do not view Shirzadian as standing for the proposition that even though the present case is not premised on sexual harassment the compensability issue must be analyzed under Horodyskyj rather than the analysis outlined in Tolbert and Popovich v. Irlando, supra.
The issue here was whether the assault had its origin in the claimant's work-related functions and was sufficiently related to those functions to be considered part of the claimant's employment contract and thus arose out of his employment with the employer. Here it is undisputed that the claimant's job duties required him to drive the golf cart around the outdoor mall area to collect trash. It follows that driving the golf cart was an inherent work function. The assault occurred while he was driving the golf cart for work. The ALJ found that the claimant did not, outside of work, have any contact with the driver of the red truck. As we read the order the ALJ was not persuaded that the assault resulted from animosity imported into the employment or that the assault was inherently private. Consequently, in our opinion the ALJ did not err in finding the claimant sustained his burden to prove the injury arose out of the employment.
IT IS THEREFORE ORDERED that the ALJ's order dated June 23, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Krikscium
______________________________ Thomas Schrant
JULIO DIAZ DOMINGUEZ, FORT COLLINS, CO, (Claimant).
AMERICAN ZURICH INSURANCE, Attn: LAURA OROZCO, SCHAUMBERG, IL, (Insurer).
SAWAYA, ROSE KAPLAN, PC, Attn: BRITTON MORRELL, ESQ., GREELEY, CO, (For Claimant).
THE KITCH LAW FIRM, PC, Attn: MARSHA A. KITCH, ESQ., EVERGREEN, CO, (For Respondents).