W.C. No. 4-368-112Industrial Claim Appeals Office.
April 7, 2000
FINAL ORDER
The respondents seek review an order of Administrative Law Judge Stuber (ALJ) which denied their request for imposition of a 50 percent reduction in compensation based on the claimant’s violation of a safety rule. We affirm
This matter was before us previously. Our Order of Remand dated July 29, 1999, contains a statement of the pertinent facts We incorporate that statement of facts in this order. Our order directed the ALJ to make findings of fact concerning whether or not the claimant’s violation of the safety rule was “willful.”
The ALJ entered his “Order Following Remand” on September 29, 1999. The ALJ found the employer had a safety rule prohibiting employees from carrying out activities in excess of medical restrictions, and that the claimant was under a 40 pound lifting restriction on the date of injury, January 14, 1998. The ALJ further determined the claimant lifted a 45 pound container of chemicals
However, the ALJ found the claimant’s violation of the safety rule was not “willful.” In support of this determination the ALJ credited the claimant’s testimony that he did not know the container weighed more than 40 pounds. The ALJ also credited evidence that, on prior occasions, the claimant had requested assistance in cases where he knew his job duties would require lifting in excess of the medical restriction. Finally, the ALJ credited evidence that the employer’s president was aware the containers weighed more than 40 pounds, and that the claimant had been lifting them on a regular basis. Nevertheless, the ALJ found the claimant was never disciplined for this activity, and that the employer did not “enforce its own rule.” Under these circumstances, the ALJ denied the respondents’ request for a reduction of compensation under § 8-42-112(1)(b) C.R.S. 1999
Initially, we note the ALJ determined the respondents failed to file a timely brief in support of their petition to review the September 29 order. Consequently, we have not considered the brief filed by the respondents. Further, the respondents’ petition to review contains only general allegations of error suggesting that the ALJ’s order is not supported by the evidence, and is contrary to law. Because of the general notice of the allegations and the lack of a brief, the effectiveness of our review is limited
As noted in our prior order, § 8-42-112(1)(b) requires the respondents to prove that violation of a safety rule was willful Violation of a rule is not willful unless the claimant intentionally did the forbidden thing. Bennett Properties Co. v Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968) Conduct is not considered to be willful if it is the product of mere negligence, forgetfulness or inadvertence. Johnson v. Denver Tramway Corp., 115 Colo. 214, 171 P.2d 410 (1946). Further, evidence that the employer does not enforce its own rules may be considered evidence that the claimant’s violation of the rule was not willful. Lori’s Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995)
The question of whether the respondents proved a willful violation was one of fact for determination by the ALJ. See Lori’s Family Dining, Inc. v. Industrial Claim Appeals Office, supra. Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record § 8-43-301(8), C.R.S. 1999. In applying this standard of review, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the record. Metro Moving and Storage Co v. Gussert, 914 P.2d 411 (Colo.App. 1995)
Here, the ALJ’s order reflects consideration of the applicable principles of law. Moreover, the evidence supports the ALJ’s determination that the claimant’s violation of the safety rule was not the product of willful conduct. The ALJ credited the claimant’s testimony that he was unaware that the chemical containers weighed more than 40 pounds. Moreover, on several occasions prior to the injury, the claimant had requested assistance when he knew that his assigned duties would require lifting in excess of his restriction. Finally, the evidence fully supports the ALJ’s inference that the employer was aware the claimant was lifting containers weighing in excess of 40 pounds, but failed to intervene and enforce the rule against working in excess of his restriction
IT IS THEREFORE ORDERED that the ALJ’s order dated September 29, 1999, is affirmed
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
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. 1999 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 7, 2000 to the followingparties:
Edward Brown, 14455 E. 22nd Pl., Aurora, CO 80011
Great Peaks, Inc., 747 Sheridan Blvd., #2A, Lakewood, CO 80214
Transportation/CNA Insurance, P. O. Box 17369 T. A., Denver, CO 80217
Kerry L. Sullivan, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
Douglas J. Kotarek, Esq., 40 Inverness Drive East, Englewood, CO 80112 (For Respondents)
BY: A. Pendroy