W.C. No. 4-301-333Industrial Claim Appeals Office.
March 27, 1997
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Martinez (ALJ) which determined that the claimant suffered an injury on June 18, 1996, arising out of and in the course of his employment, awarded temporary disability benefits, and increased those benefits by fifty percent due to the respondent’s failure to carry workers’ compensation insurance. The respondent contends that the ALJ erred in finding a compensable injury, and should have reduced the claimant’s temporary disability benefits in accordance with §8-42-112(1)(b), C.R.S. (1996 Cum. Supp.). We disagree, and therefore, affirm.
The ALJ’s pertinent findings of fact may be summarized as follows. The claimant was employed by the respondent as a wrangler, and resided on the respondent’s ranch. On the evening of June 17, 1996, the respondent instructed claimant to “take the next two days off and not to wrangle horses” with a colt named “Highball.”
The following morning there were thirty five horses which needed to be corralled and prepared for riding. The vehicle normally used to gather the horses had a flat tire, and there was an irrigation pipe laying across the road. Further, the claimant testified that Highball was the only horse available. As a result, the claimant rode Highball to corral the other horses, and suffered a disabling injury when he was thrown from the horse.
I.
The respondent argued to the ALJ, and contends on appeal that the respondent limited the sphere of the claimant’s employment and suspended the employment relationship by directing the claimant to take the next two days off. In support, the respondent cites Bill Lawley Ford v. Miller, 672 P.2d 1031
(Colo.App. 1983). Therefore, the respondent argues that the claimant’s injury did not occur “in the course of” his employment. The ALJ implicitly rejected this argument and contrary to the respondent’s argument, we conclude that the ALJ’s determination is supported by the applicable law.
A compensable injury is one which “arises out of” and occurs “in the course of” employment. Section 8-41-301(1)(b), C.R.S. (1996 Cum. Supp.); Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996). The phrase “in the course of” employment refers to the time and place limits of the employment. Popovich v. Irlando, 811 P.2d 379, 383
(Colo. 1991).
As argued by the respondent, an employer may limit an employee’s sphere of employment, such that the employee is not within the “course of” his employment if he violates the directive. Bill Lawley Ford v. Miller, supra. To limit the employee’s sphere of employment, the employer must issue a specific directive designed to terminate, for a period of time, the employer/employee relationship. Cf. Nielsen v. PXC Denver LLC, W.C. No. 4-241-772, March 5, 1996 (directive not to drive home in bad weather not clearly designed to prohibit employee from so doing).
However, an injury which occurs during the violation of a general directive will nevertheless, be considered to be within the course of employment if the consequences of violation are outweighed by the specific benefits which flow to the employer from the violation. Butland v. Industrial Claim Appeals Office, 754 P.2d 422 (Colo.App. 1988); Maintenance Management Inc. v. Tinkle, 40 Colo. App. 80, 570 P.2d 840
(1977). For example, in Maintenance Management an employee was injured when he went back to the employer’s premises after the completion of his normal work shift. The employee did so without directions or acquiescence from his employer, but was acting with the intent of benefitting the employer. Under these circumstances, the court concluded that the injury was compensable.
Similarly, in Butland the claimant worked at a racetrack on an “as needed basis.” One afternoon, the employer gave the claimant and several other employees the rest of the day off. However, since the claimant lived at the racetrack, he remained on the employer’s premises. The claimant was later injured while trying to repair some machinery for the employer. The Butland court concluded that the claimant’s injury occurred while he was performing work which furthered the interests of the employer despite the employer’s directive that the claimant was “no longer required to work.” Therefore, th Butland court concluded that the circumstances were akin to the facts in Maintenance Management and that the injury was compensable because the benefits flowing to the employer outweighed the significance of the claimant’s action in violating the general directive.
Notwithstanding the respondent’s arguments, the ALJ’s order indicates that the facts of this matter are akin to the facts i Butland. As in Butland, the claimant’s injury occurred at a time when he was technically off work and not required to perform any employment duties. However, similar t Butland, the claimant lived on the employer’s premises, and had a reason to be on the employers’ premises even when he was not required to work. Furthermore, in both cases the claimant was injured while performing work which significantly benefitted the employer. In fact, the claimant’s testimony indicates that the claimant gathered and corralled the respondent’s horses before seeking treatment for his injury. See (Tr. p. 10). The directive to take time off was general, and the record does not indicate that violation of the directive would, under the usual circumstances, pose a serious problem for the employer.
Under these circumstances, we are not persuaded that a result different from the result reached by the court i Butland is warranted. Consequently, we reject the respondent’s contention that it was error for the ALJ to find that the claimant sustained a compensable injury.
II.
Alternatively, the respondent contends that the claimant’s injury was the result of his violation of the directive not to ride Highball to wrangle horses. Therefore, the respondent argues that the ALJ erred in refusing to impose penalties under § 8-42-112(1)(b). We disagree.
Section 8-42-112(1)(b) provides for a fifty percent reduction of temporary disability benefits where the claimant’s injury is the result of the claimant’s “willful failure to obey any reasonable rule adopted by the employer for the safety of the employee.” A “willful” violation occurs where the employee is aware of the employer’s safety rule and intentionally fails to follow it. Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968). Moreover, the term “willful” connotes a “deliberate intent, and not merely negligence, or forgetfulness.” Johnson v. Denver Tramway Corp., 115 Colo. 214, 171 P.2d 410 (Colo. 1946).
As argued by the respondent, a safety rule need not be in writing. Lori’s Family Dining, Inc., v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995). Rather, a verbally communicated safety rule is sufficient to trigger the provisions of § 8-42-112(1)(b), if the rule, warning or prohibition is heard and understood by the employee. Bennett Properties Co. v. Industrial Commission, supra.
The determination of whether the claimant willfully violated a safety rule is a factual determination for the ALJ. City of Las Animas v. Maupin, 804 P.2d 285 (Colo.App. 1990). Therefore, we are bound by the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.).
Here, the ALJ found that there was no prohibition preventing the claimant from riding Highball or using Highball to corral the other horses prior to June 17. The ALJ also found that the respondent’s directive not to wrangle with Highball occurred after work, in the parking lot of a bar, when the claimant was inebriated. As a result, the ALJ found that the claimant did not remember the respondent’s instructions not to wrangle with Highball. Further, the ALJ determined that the respondent arose early on the morning of June 18, but made no effort to repeat the instructions not to use Highball to corral the other horses. (Finding of Fact 5). Under these circumstances, the ALJ determined that the claimant did not hear and understand the instruction not to ride Highball in gathering the horses. (Finding of Fact 6).
The ALJ’s findings are amply supported by the record. Furthermore, the ALJ’s findings support his determination that the respondent failed to carry his burden to prove a “willful” violation of a safety rule. Therefore, we conclude that the ALJ did not err in denying the respondent’s request for the imposition of penalties under § 8-42-112(1)(b).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 25, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed March 27, 1997 to the following parties:
James E. Wren, P.O. Box 5006, Durango, CO 81301
Rick Baird d/b/a Southfork Riding Stables Outfitting, 28481 Highway 160, Durango, CO 81301-7965
Tracy J. Cross, Esq, 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
Douglas E. Briggs, Esq., 743 Horizon Ct., #200, Grand Junction, CO 81506 (For Respondent)
BY: _______________________________