IN RE ALVARADO, W.C. No. 4-559-275 (12/10/03)


IN THE MATTER OF THE CLAIM OF CARLOS ALVARADO, Claimant, v. ADOLFSON PETERSON CONSTRUCTION, Employer, and AMERICAN PROTECTION INSURANCE, Insurer, Respondents.

W.C. No. 4-559-275Industrial Claim Appeals Office.
December 10, 2003

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Coughlin (ALJ). The claimant contends the evidence does not support the ALJ’s imposition of a penalty for a safety rule violation. We disagree and, therefore, affirm the order.

The claimant, a construction laborer, fell out off a wooden box which was suspended at the opening of a second floor building by a forklift. As the claimant stepped out of the second floor into the box to unload it, the box tipped off the forks, which caused the claimant to fall 14 feet to the ground and suffer injuries.

The ALJ found that once the claimant stepped off the second floor onto the box the claimant was exposed to a fall in excess of six feet and fall protection gear was required by the employer’s safety policy. The ALJ also found that the claimant willfully violated the employer’s rule which required the use of fall protection gear and that use of the gear would have prevented the claimant from falling to the ground. Therefore, the ALJ reduced the claimant’s compensation by 50 percent.

On review the claimant contends no supervisor told him to wear fall protection gear immediately preceding the accident and he thought the box was safe to enter without a harness. Therefore, he contends his accident was the result of negligence not deliberate intent. We perceive no basis to set aside the ALJ’s order.

Section 8-42-112(1)(b), C.R.S. 2003, authorizes a fifty percent reduction in compensation for a “willful failure to obey any reasonable rule adopted by the employer for the safety of the employee.” In order for the violation to be willful the respondents must prove the claimant acted with deliberate intent. In contrast, willfulness is not shown if the conduct is the result of mere thoughtless or negligence. Johnson v. Denver Tramway Corp., 115 Colo. 214, 171 P.2d 410 (1946). However, it need not be shown the claimant had the rule in mind and decided to break it. Rather, it is sufficient to show the employee knew the rule and deliberately performed the forbidden act. Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968); Stockdale v. Industrial Commission, 76 Colo. 494, 232 P. 669 (1925). Further, willful conduct may be proven by circumstantial evidence including evidence of frequent warnings, the obviousness of the risk, and the extent of deliberation evidenced by the claimant’s conduct. Bennett Properties Co. v. Industrial Commission, supra.

Further, the violation of a safety rule need not be considered willful if the employee had some “plausible purpose to explain his violation of a rule.” City of Las Animas v. Maupin, 804 P.2d 285, 286 (Colo.App. 1995). Generally, an employee’s violation of a rule in an attempt to facilitate accomplishment of the employer’s business does not constitute willful misconduct. However, an employee’s violation of a rule for the purposes of making the job easier and speeding operations is not considered a “plausible purpose.” 2 Larson’s Workers’ Compensation Law, § 35.04.

The question of whether the claimant deliberately violated a safety rule is one of fact for determination by the ALJ. City of Las Animas v. Maupin, supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to 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., 914 P.2d 411 (Colo.App. 1995).

The claimant’s contention notwithstanding, the record contains substantial evidence to support the ALJ’s finding the claimant knew his conduct violated the safety rule requiring the use of a full body harness when an employee is exposed to a potential fall over 6 feet. The employer’s safety representative testified the claimant attended an orientation program which included the presentation of a 19 minute video on the use of “fall protection” gear. The video (Hearing Exhibits B C), illustrates circumstances which require “fall protection gear,” meaning the use of a full body harness properly tied off when an employee is exposed to a potential fall greater than 6 feet. The video also illustrates how to put on the harness. Similarly, the employer’s written Construction Safety Orientation handbook requires employees to employ fall protection gear to prevent falls over 6 feet.

Further, the employer’s Project Superintendent testified that job site visits are conducted two to three times per week to insure compliance with the employer’s safety. The Superintendent also testified that there was a body harness at the job site where the claimant was working and co-workers could have assisted the claimant in finding the harness.

The claimant admitted he was not using the safety harness and knew he was exposed to a potential fall in excess of six feet. (Tr. p. 46). The claimant also admitted he could have stopped working and asked his co-workers where the harness was located. (Tr. pp. 47, 52). Moreover, although the claimant initially testified he thought the box was safe to enter, he admitted on cross-examination that the crate did move a little bit when he first stepped into it. (Tr. p. 50).

Based on this evidence the ALJ also reasonably inferred that the claimant failed to establish a plausible purpose for violating the rule. Consequently, it is immaterial the record contains evidence which, if credited, might support a contrary inference. See Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996) (substantial evidence is probative which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences).

IT IS THEREFORE ORDERED that the ALJ’s order dated July 15, 2003, 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. 2003. 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 order were mailed to the parties at the addresses shown below on December 10, 2003 by A. Hurtado.

Carlos Alvarado, 4731 Race St., Apt. 2, Denver, CO 80216

Adolfson Peterson Construction, 12551 Holly St., Thornton, CO 80216

American Protection Insurance, c/o Colleen Sullivan, Kemper, P. O. Box 5347, Denver, CO 80217

Janie C. Castaneda, Esq., 1120 Lincoln St., #703, Denver, CO 80203 (For Claimant)

John M. Lebsack, Esq., 950 17th St., #2100, Denver, CO 80202 (For Respondents)