W. C. No. 4-666-470.Industrial Claim Appeals Office.
January 23, 2007.
FINAL ORDER
The employer seeks review of an order of Administrative Law Judge Martinez (ALJ) dated August 4, 2006 that concluded that the claimant sustained a compensable injury and that ordered the employer to pay medical benefits and temporary total disability benefits and to post a bond. We affirm.
A hearing was held on the issues of the compensability of the claim, and the claimant’s entitlement to temporary total disability benefits and to medical benefits. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. On October 15, 2005, the claimant was performing the duties of her employment with the employer when the owner’s wife confronted the claimant, accused her of having an illicit affair with the owner, and struck her in the face with a length of pipe. The claimant’s resulting injuries required medical treatment and the employer instructed the claimant to go to the emergency room of the local hospital. She did so and was treated, and the emergency room doctor then referred her to other providers. The claimant eventually received treatment from providers that included the N.W. Colorado Ear, Nose, Throat Facial Surgery facility, Orthopaedics of Steamboat Springs, and the Yampa Valley Medical Center, all of which were authorized to treat the claimant’s compensable injuries. The ALJ also found that the claimant’s injuries temporarily disabled her from performing her regular job.
Based upon his factual findings the ALJ concluded that the claimant sustained compensable injuries in the assault, and he ordered the uninsured employer to pay medical benefits, and temporary total disability benefits, and either to post a surety bond or deposit a sum with the Division of Workers’ Compensation to secure payment of the benefits and compensation ordered.
The employer appealed the ALJ’s order. Although the employer did not file a brief in support of its petition to review, the petition contains several factual assertions. The employer states that the claimant “was never employed” by the employer, that she was “on drags” when she applied for a job, and that she “became hostile and tried to wreak (sic) us and the shop.” However, our review is restricted to the record developed before the ALJ, and we are not authorized to consider factual assertions raised by a party for the first time on review. City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Voisinetv. Industrial Claim Appeals Office, 725 P.2d 171 (Colo.App. 1988). Moreover, the employer did not provide a transcript of the hearing and, indeed, the employer did not appear at and participate in the hearing. Accordingly, the scope of our review is extremely limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Where the claimant’s entitlement to benefits is disputed, the claimant has the burden to prove a causal relationship between a work-related accident and an injury, disease or condition for which benefits or compensation are sought. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). Whether the claimant sustained her burden of proof is a factual question for resolution by the ALJ. City ofDurango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). The ALJ’s factual determinations must be upheld if supported by substantial evidence and plausible inferences drawn from the record. We have no authority to substitute our judgment for that of the ALJ concerning the credibility of witnesses and we may not reweigh the evidence on appeal. Id.; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
The scope of our review is statutorily restricted to determining whether substantial evidence supports the ALJ’s pertinent findings of fact, whether the findings are sufficient to support the order, and whether the ALJ properly applied the law. Section 8-43-301(8), C.R.S. 2006. Substantial evidence is that evidence which would support a reasonable belief in the existence of a fact without regard to conflicting evidence or contrary inferences. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). In the absence of a transcript we are required to presume that the ALJ’s findings of fact are supported by substantial evidence in the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
Here, we perceive no misapplication of the law. The claimant was required to prove the injury “arose out of her employment. Sections 8-41-301(l)(b) (c), C.R.S. 2006. An injury arises out of employment if it is sufficiently related to the conditions and circumstances under which the employee generally performs her job functions such that the activity may reasonably be characterized as an incident of the employment, even if the activity is not a strict obligation of the employment and does not confer a specific benefit on the employer Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996). The essence of the test is whether the conduct originated in the work-related duties or responsibilities so as to be considered part of the service to the employer in connection with the contract of employment. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991). Ultimately, resolution of this issue is one of fact to be determined by the ALJ based on an examination of the totality of the circumstances. Lori ‘s Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715
(Colo.App. 1995).
Injuries which are the result of a workplace “assault” are generally divided into three categories of causation. The first category is assaults that have an inherent connection to the employment because of “enforced contacts” which result from the duties of the job. In Re Questions Submitted by U.S. Court of Appeals, 759 P.2d 17, 23 (Colo. 1988); Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861
(Colo.App. 1996). This includes assaults originating in arguments over work performance, work equipment, delivery of a paycheck or termination from work. 1 Larson, Larson’s Workers Compensation Law § 8.012(2)(b)(2004).
The second category includes assaults that result from a “neutral force.” See Triad PaintingCo. v. Blair, 812P.2d638(Colo. 1991); In Re Questions Submitted by U.S. Courtof Appeals, supra. A “neutral force” is one that is neither particular to the claimant nor the employment. This type of assault has been analyzed under the “positional risk” or “but for” test and is applied to injuries which result from stray bullets, roving lunatics, drunks, assaults by mistake and completely unexplained attacks. In Re Questions Submitted by the U.S. Court of Appeals, supra.
The third category is assaults which are the result of a private dispute which the parties import to the work place. Velasquez v. Industrial Commission, 41 Colo. App. 201,581 P.2d 748 (1978) (claimants shot by a co-worker who believed that the claimants had made obscene calls to the co-worker’s spouse). This category has been expanded to include assaults where the victim was specifically chosen or targeted Horodyskyj v. Karanian, 32 P.3d 470 (Colo 2001).
Assault injuries from a “neutral force” are compensable. In contrast, injuries caused by a work place assault which results from a private or personal dispute imported to the workplace are not compensable. In Re Questions Submitted by U.S. Court of Appeals, 759 P.2d 17, 23 (Colo. 1988).
Although it is questionable whether this claim was properly analyzed as one involving a “neutral force,” we nonetheless perceive no reversible error. The factual findings suggest that the aggressor singled out the claimant because of the former’s mistaken belief that she was having an illicit relationship with the owner. As noted, the category of assaults involving a neutral force is limited to those in which the claimant is not a specific target and any other person who happened to be in the same circumstances as the claimant would have been assaulted. However, even if, as suggested by the findings, the assault here was aimed specifically at the claimant, we conclude that the findings compel the award of benefits. The ALJ specifically found that no “private or personal matter” had been imported into the workplace. As noted, we must presume that this factual finding is supported by the record, since no transcript of the hearing was provided. In our view, this finding is the equivalent of one that a sufficient connection existed between the claimant’s employment and the assault to warrant a determination that the claim is compensable. The ALJ is not held to a crystalline standard in articulating his findings of fact. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000). As previously noted, the employer did not appear at or participate in the hearing, file a brief, submit a transcript of the hearing, or present any legal argument in the petition to review. Under these circumstances we are not in a position to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 4, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________
Curt Kriksciun ____________________________________
Thomas Schrant
Leah C. Andres, P.O. Box 880485, Steamboat Springs, CO 80488
Noble Plumbing Heating, Nathan Noble, 917 Osage #3, Manitou Springs, CO 80829
Larry D. Combs, Esq., P.O. Box 774367, Steamboat Springs, CO 80477 (For Respondent)