W.C. No. 4-217-989Industrial Claim Appeals Office.
September 15, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Stuber (ALJ) which denied the respondents’ request for imposition of a fifty percent penalty under § 8-42-112(1)(b), C.R.S. (1995 Cum. Supp.) (willful violation of a safety rule). We affirm.
The claimant sustained a closed head injury when he fell from the tailgate of a pickup truck which he was riding during his employment. The respondents admitted liability for temporary total disability benefits. However, they claimed a fifty percent reduction of benefits on grounds that the claimant’s injury resulted from a willful failure to obey the employer’s rule prohibiting employees from riding on the tailgate of a moving pickup truck.
From conflicting evidence, the ALJ determined that the respondents failed to sustain their burden to prove that the claimant’s injury resulted from a willful violation of a safety rule. Expressly crediting the claimant’s testimony, the ALJ found that the employer did not have a safety rule which prohibited its employees from riding on the tailgate of a moving pickup truck, and thus, the ALJ determined that, “there was no way that employees would be aware that such behavior is prohibited.” In so doing, the ALJ rejected the respondents’ contention that certain language in the employer’s safety handbook implicitly prohibits this activity. The ALJ also determined that the claimant did not understand the written safety handbook language to prohibit riding on a tailgate. Further, the ALJ determined that the employer did not enforce any such rule, and therefore, “did not bring home” to the employees that such a rule existed.
On review, the respondents contend that the ALJ’s findings of fact are not supported by substantial evidence in the record. In support, the respondents argue that the claimant’s testimony is incredible because the closed head injury impaired the claimant’s memory. The respondents also renew their contention that the safety handbook should be construed as prohibiting employees from riding on the tailgate of a moving pickup truck, and cite Jerry Mosley’s testimony that he orally instructed the claimant not to ride on the tailgate. Further, the respondents contend that the evidence of other employees riding on tailgates is irrelevant because the claimant was not injured while picking up traffic cones. We reject the respondents’ arguments.
Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985). Further, it is the ALJ’s sole prerogative to determine the credibility of the witnesses, the sufficiency of the evidence and the inferences to be drawn from conflicts in the record. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
Here, the ALJ resolved conflicts between the claimant’s testimony and Jerry Mosley, by crediting the claimant’s testimony that he did not know the employer prohibited him from riding on the tailgate of a moving pickup truck. Tr. pp. 15, 62. Furthermore, the claimant’s testimony supports the ALJ’s inference that the claimant did not understand the safety handbook to prohibit this conduct. Therefore, the claimant’s testimony supports the ALJ’s determination that the claimant’s violation was not “willful,” regardless of whether the employer’s written safety rules which prohibit employees from riding on the outside of a vehicle, riding on “running boards or steps,” riding where no “seat is provided” and riding without their position on the vehicle being “secure,” might be construed to also prohibit riding on a tailgate. See Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968) (“willful” violation occurs where the employee knowing of the safety rule, intentially fails to to follow it); City of Las Animas v. Maupin, 804 P.2d 285 (Colo.App. 1990).
Moreover, we cannot conclude that the claimant’s testimony is incredible as a matter of law, unless it is rebutted by hard, certain evidence to the contrary. See Halliburton Services v. Miller, 720 P.2d 571
(Colo. 1986). Admittedly, the record contains evidence that the closed head injury impaired the claimant’s ability to remember the circumstances surrounding the industrial accident. Tr. pp. 18, 42. However, this evidence does not compel a conclusion that the injury otherwise impaired the claimant’s memory. Under these circumstances, we cannot say that the record contains hard, certain evidence rebutting the claimant’s recollection of the employer’s safety instructions. Consequently, we lack authority to interfere with the ALJ’s determination to credit the claimant’s testimony concerning the employer’s safety rules. Halliburton Services v. Miller; El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (ALJ may credit all, part of none of a witness’ testimony).
Lastly, we perceive no error in the ALJ’s consideration of the claimant’s testimony that employees commonly rode on tailgates to perform duties such as picking up traffic cones. Tr. p. 19, 62. Contrary to the respondents’ argument, this evidence supports the ALJ’s inference that, if the employer had a rule which forbade employees to ride on the tailgate of a moving pickup truck, the employer “did not bring home” the rule that such conduct was prohibited. Lori’s Family Dining, Inc., v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995). Moreover, this inference supports the ALJ’s determination that the claimant’s injury was not the result of a willful violation of a safety rule. See Pacific Employers’ Insurance Company v. Kirkpatrick, 111 Colo. 470, 143 P.2d 267, 270 (Colo. 1943) (lack of enforcement of a safety rule is some evidence from which the ALJ may infer that the rule did not actually exist, or the violation was not “willful”).
IT IS THEREFORE ORDERED that the ALJ’s order dated March 16, 1995, 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed September 15, 1995 to the following parties:
Jeffrey P. Turman, P.O. Box 6094, Denver, CO 80206
Asphalt Paving Co., Attn: Jerry Mosley, Safety Director, 14802 W. 44th, Golden, CO 80403
The Maryland Insurance Group, Attn: Amanda Anderson, 2729 Prospect Park Dr., Ste. 100, Rancho Cordova, CA 95670
Floyd M. Youngblood, Esq., 4465 Kipling, Ste. 102, Wheat Ridge, CO 80033 (For the Claimant)
James R. Clifton, Esq., 5353 W. Dartmouth Ave., Ste. 400, Denver, CO 80227 (For the Respondents)
BY: _______________________