Opinion
W.C. No. 4-783-889.
February 1, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated July 31, 2009, that found the claim compensable and ordered the payment of certain specific medical treatment. We affirm.
The claimant worked for the employer at a landfill picking up loose trash. On January 14, 2009, while picking up trash, the claimant reached into a yucca plant to pick up a five-dollar bill and scraped the back of his hand. The wound became infected and the claimant received emergency treatment including surgery. The insurer denied the workers' claim for compensation. Dr. Hackenberg opined that the injury led to the claimant's infectious disease. Dr. Roth opined that the infection was not related to work activities because the claimant had no break in the skin. The ALJ credited Dr. Hackenberg's opinion that the methicillin sensitive staphylococcus aureus bacterium was given a portal to enter the claimant's system due to the yucca scrape. The respondents also argued that the claimant was on a personal deviation when the injury occurred. The ALJ determined that the act of picking up the five-dollar bill was an insignificant deviation from the claimant's assigned duties and therefore did not remove the claimant from the employment relationship.
I.
The respondents contend that the ALJ erred as a matter of applicable law in finding that the act of picking up a five-dollar bill constituted an "insignificant deviation" from the claimant's assigned work duties such that an injury sustained during the act was compensable. The respondents citing Kater v. Industrial Com'n of State of Colo. 728 P.2d 746 (Colo. App. 1986) and Brogger v. Kezer 626 P.2d 700 (Colo. App. 1980) argue that here the act of the claimant at the time of the injury was solely for his own benefit and therefore his injury did not arise out of his employment. The respondents conclude that the ALJ erred as a matter of law in finding the claim compensable by analyzing the matter as an "insignificant deviation." We conclude otherwise.
To obtain compensation for an injury, an injured employee must, at the time of injury, have been "performing service arising out of and in the course of the employee's employment." Section 8-41-301(1)(b), C.R.S. 2009. Under Colorado's Workers' Compensation Act (Act), the terms "in the course of and "arising out of are not synonymous. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991). However, whichever theoretical framework is applied, the issue remains whether the claimant's conduct constitutes such a deviation from the circumstances and conditions of the employment that the claimant stepped aside from his job and was performing activity for his sole benefit. Panera Bread, LLC v. Industrial Claim Appeals Office, 141 P.3d 970 (Colo. App. 2006). It is not essential to compensability that the activities of an employee emanate from an obligatory job function or result in some specific benefit to the employer, as long as they are sufficiently incidental to the work itself as to be properly considered as arising out of and in the course of employment. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985).
Under the Act, it is generally not necessary for an employee to be actually engaged in work duties at the time of an accident for an injury to be compensable. See Phillips Contracting, Inc. v. Hirst 905 P.2d 9 (Colo. App. 1995). It is sufficient if the injury arises out of a risk, which is reasonably incidental to the conditions and circumstances of the particular employment. Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). When a personal deviation is asserted, the issue is whether the activity giving rise to the injury constituted a deviation from employment so substantial as to remove it from the employment relationship. Silver Engineering Works, Inc. v. Simmons, 180 Colo. 309, 505 P.2d 966 (1973); Roache v. Industrial Commission, 729 P.2d 991 (Colo. App. 1986).
The respondents contend that the ALJ improperly expanded existing case law in concluding that an insignificant deviation permits a finding of compensability. We do not read the ALJ's order as departing from established case law. In examining whether an accident arose out of and in the course of the employee's employment, the courts of Colorado have looked to whether a deviation is substantial enough to remove the claimant from the course and scope of employment.
A number of cases illustrate this analysis. For example, in Kelly v. Industrial Claim Appeals Office 214 P.3d 516, (Colo. App. 2009) the court noted, "The general test for deviation from employment in Colorado is whether the deviation is substantial." In Panera Bread, LLC v. Industrial Claim Appeals Office 141 P.3d 970 (Colo. App. 2006) the court in discussing horseplay noted that:
it was analyzed under general principles that govern whether a claimant has deviated from employment so substantially as to remove him or her from the course of employment. When, as here, a particular act of horseplay, as opposed to the employment environment in general, is at issue, the act is to be judged according to the same standards of extent and duration of deviation that are accepted in other fields, such as resting, seeking personal comfort, or indulging in incidental personal errands."
In Pacesetter Corp. v. Collett 33 P.3d 1230 (Colo. App. 2001) the court noted that the act of consuming alcohol, by itself, can constitute a personal deviation sufficient to remove the claimant from the scope of employment. In Phillips Contracting, Inc. v. Hirst, supra the court stated: "When a personal deviation is asserted, the issue is whether the activity giving rise to the injury constituted a deviation from employment so substantial as to remove it from the employment relationship." In Lori's Family Dining, Inc. v. Industrial Claim Appeals Office 907 P.2d 715 (Colo. App. 1995) the court stated that horseplay may constitute an insubstantial deviation from employment and might, therefore, not preclude an award of compensation to a participant who is injured during that conduct. The court, in announcing a four-part test to be applied to analyze whether horseplay is a deviation, noted that the first two parts of the test were: "(1) the 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 an abandonment of duty."
In Roache v. Industrial Com'n of State of Colo. 729 P.2d 991 (Colo. App. 1986) the court stated: "Employment compensation cases involving injuries which occur off-premises during a rest or sustenance break normally raise the issues whether the employer retained control during the break period and whether the activity giving rise to the injury constituted a deviation from employment so substantial as to remove it from the employment relationship." In our view, the ALJ's examination of whether there was an "insignificant deviation" from the claimant's assigned work duties did not constitute reversible error. The issue then becomes whether the record supports the ALJ's determination.
The question of whether a deviation is significant enough to remove the claimant from the course and scope of employment is one of fact for determination by the ALJ. See Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, supra. Accordingly, we must uphold the ALJ's findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).
In our view, the record supports the ALJ's determination that the act of picking up the five-dollar bill was an insignificant deviation from the claimant's assigned duties and therefore did not remove that act from the employment relationship. Here the claimant testified that his assignment at the landfill was to pick up loose trash that was on the ground so that it did not blow off on to the property next to it. Tr. at 9-10. While picking up the trash, the claimant saw a five-dollar bill stuck on a yucca plant. Tr. at 10. In picking up the five-dollar bill, the claimant scraped himself against the edge of the plant. Tr. at 10. Therefore, there is substantial evidence supporting the ALJ's determination that picking up the money constitute an insubstantial deviation from employment and may, therefore, not preclude an award of compensation. Lori's Family Dining, Inc. v. Industrial Claim Appeals Office supra.
Notwithstanding the assertions of the respondents, we are not persuaded that it was an undisputed fact that at the time of the alleged incident the claimant's actions were solely for his own benefit. In our opinion, the ALJ could reasonably conclude that the act of picking up money, which obviously was of some the benefit to the claimant, was commingled with the performance of his duty to pick up trash and did not represent an abandonment of his duty. Our state has adopted the "dual purpose" doctrine, which we believe is applicable here. See Deterts v. Times Pub. Co. 38 Colo. App. 48, 552 P.2d 1033 (Colo. App. 1976). That doctrine holds that an injury suffered by an employee while performing acts for the mutual benefit of the employer and employee is usually compensable. Thus, when some advantage to an employer results from the employee's conduct, his act cannot be regarded as purely personal and wholly unrelated to employment. Here the claimant's actions in picking up paper benefited the employer even if the paper included money. Under this rule, the ALJ's award of compensation benefits is appropriate.
Moreover, we are not persuaded that the act of picking up a five-dollar bill when the claimant's job at the landfill is to pick up loose trash constituted a deviation at all. The respondents have not argued nor does the record contain evidence that the claimant's job was confined to picking up only worthless pieces of paper.
In any event, the record supports a determination that there was but a slight and temporary departure from work for the employee's personal convenience, which did not break the course of employment. See Mitchell v. Holland Furnace Co. 189 Pa .Super. 82, 149 A.2d 662 (1959) (deceased, a door to door furnace salesman who asked and received permission from householder to pick cherries and who was killed when he fell off ladder, died as a result of accident and that injuries were incurred in course of employment); 1 Larson, Workers' Compensation Law, § 17.06(3)(2009) We agree with the ALJ that, it did not constitutes such a significant deviation that it removed the claimant from the employment relationship.
II.
The respondents next contend that the ALJ erred because substantial evidence does not exist in the record to support his determination that the claimant sustained an injury as a direct and proximate result of the act of picking up the five-dollar bill. The respondents argue that the claimant testified that his skin was not broken and there was no bleeding from the site where the alleged injury occurred. Dr. Roth opined that it was not medically possible for the methicillin sensitive staphylococcus aureus bacteria to have developed without a break in the skin. Dr. Roth suggested that the infection was due to the claimant's diabetes.
Because this issue is factual in nature, as noted above we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8). In particular, we note that the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
Here the ALJ found with record support that Dr. Hackenberg opined that the methicillin sensitive staphylococcus aureus bacteria, which is present on the skin of one-third of all people, was given a portal to enter the claimant's system due to the yucca scrape. Hackenberg Depo. at 11-12 27. Dr. Hackenberg further opined that the bacterium is microscopic and a visible wound is not necessary for a portal. Hackenberg Depo. at 13-14 . The ALJ credited Dr. Hackenberg's opinions.
There was a sharp conflict in the medical opinions concerning the causal connection between the incident with the yucca plant and the development of the claimant's infection. The standard of review requires us to view the evidence in the light most favorable to the prevailing party, and to defer to the ALJ's credibility determinations. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo. App. 2003). In our view, the testimony of Dr. Hackenberg constitutes substantial evidence in support of the ALJ's determination regarding causation.
IT IS THEREFORE ORDERED that the ALJ's order dated July 31, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
MARIO C LAROC, COLORADO SPRINGS, CO, (Claimant).
LABOR READY, INC., TACOMA, WA, (Employer).
ACE USA INSURANCE, Attn: LAURA MCGUIRE, C/O: ESIS PORTLAND CLAIMS, TAMPA, FL, (Insurer).
GIELAROWSKI LAW FIRM, Attn: K MACHELLE GIELAROWSKI, ESQ., COLORADO SPRINGS, CO, (For Claimant).
CLIFTON, MUELLER BOVARNICK, PC, Attn: RICHARD BOVARNICK, ESQ., DENVER, CO, (For Respondents).
LABOR READY, INC., COLORADO SPRINGS, CO, (Other Party).