W.C. No. 4-336-464Industrial Claim Appeals Office.
February 26, 1998
FINAL ORDER
The self-insured employer seeks review of an order of Administrative Law Judge Friend (ALJ) which determined that the claimant suffered a compensable back injury, and awarded medical benefits. We affirm.
On May 9, 1996, while the claimant was on medical leave from work due to a non-industrial shoulder injury, he went to the employer’s premises for the purpose of destroying documents in his desk. He testified that the documents contained confidential information which could have a detrimental effect on the employer if disseminated. The claimant stated that he shredded the documents and then proceeded to take them to a main trash drop, at which time he fell down a flight of stairs and injured his back. On May 10, 1996, the claimant sought medical treatment at the Coors Medical Center, where he was examined by Dr. Ritchey.
Crediting the claimant’s testimony the ALJ found that the claimant suffered a compensable back injury on May 9, 1996, when he fell down a flight of stairs at the employer’s premises. In so doing, the ALJ recognized that the claimant had pre-existing back problems and that the claimant suffered a back strain a few days earlier from a fall at home. However, the ALJ found that after the fall on May 9 the claimant suffered a significant increase in pain which prompted him to seek treatment on May 10.
The ALJ also recognized that the claimant did not indicate on the May 10 “Medical Treatment Request” form that his back problem was “work-related.” Instead, the claimant marked the form to indicate that the treatment should be billed to his personal health care policy. However, the ALJ found that the claimant did so because he was told that everything would proceed more quickly if he marked the “primary care” box on the form instead of the “work-related” injury box.
On review the employer contends that there is not substantial evidence in the record to support the ALJ’s finding of a compensable injury. In support, the employer asserts that the claimant’s testimony is the only evidence of a work-related fall on May 9, 1996, and that the claimant’s testimony is refuted by overwhelming evidence to the contrary. They also contend that the claimant’s testimony is incredible in view of his insistence that he was treated by Dr. Miller on May 10, 1996. We reject these arguments.
It is undisputed that the claimant bears the burden to prove that he sustained an injury arising out of an in the course of his employment. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990). The question of whether the claimant has sustained his burden of proof is a factual determination for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496
(Colo.App. 1997). Because the question is factual in nature we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. This standard requires us to review the evidence in the light most favorable to the prevailing party, and accept the ALJ’s resolution of conflicts in the evidence, and the plausible inferences which he drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, this standard affords the ALJ broad discretion in assessing the weight and sufficiency of the evidence and we may not disturb the ALJ’s credibility determinations unless there is hard, certain evidence directly contrary to the testimony which the ALJ found credible. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981).
It is true that the ALJ orally found the claimant’s testimony to be “suspicious.” The ALJ also noted the claimant’s erroneous assertion that the was treated by Dr. Miller on May 10. (Tr. p. 106). Nevertheless, there were no witnesses to the alleged fall and the employer did present any direct evidence to refute the claimant’s explanation of the injury. Therefore, we cannot say that the ALJ erred in crediting the claimant’s testimony that he suffered a back injury during a fall at the employer’s premises on May 9. See Halliburton Services v. Miller, supra.
Moreover, as the ALJ found, the claimant’s testimony is corroborated by the May 10, 1996 Medical Treatment Request form which states that the claimant sought treatment due to a “fall yesterday on stairs where [sic] hit back.” (Tr. pp. 106-107; Finding of Fact 5). Consequently, there is substantial evidence to support the ALJ’s pertinent findings. The fact that the record contains evidence which, if credited, might support a contrary result does not afford us a basis to grant appellate relief. See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986) (claimant’s testimony was substantial evidence that employment caused his heart attack); Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983).
Alternatively, the employer contends that, even if the claimant injured his back during a fall at the employer’s premises, the ALJ erroneously determined that the injury arose “out of” and “in the course of” his employment. We disagree.
As argued by the employer, 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. 1997; 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). The “arising out of” requirement is met when the origins of the injury are work-related, and the injury is sufficiently related to the work to be considered part of the employee’s services to the employer General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). In this regard, the injury does not have to be the result of a mandatory employment activity. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); University of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953). Rather, it is sufficient if the injury arises out of a risk which is reasonably incidental to the conditions and circumstances of the particular employment. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9
(Colo.App. 1995). This includes discretionary or optional activities on the part of the employee which are devoid of any duty component and are unrelated to any specific benefit to the employer. City of Boulder v. Streeb, 706 P.2d at 791.
The employer argues that because the claimant was on medical leave at the time of the alleged injury, and was not required to be at the employer’s premises, his back injury could not have occurred “in the course of” his employment. The employer also contends that according to the claimant’s testimony he was required to maintain personnel evaluations, and therefore, he was not acting for the benefit of the employer at the time of the injury. We reject these arguments.
Admittedly, 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 express limitations imposed by the employer. Bill Lawley Ford v. Miller, 672 P.2d 1031
(Colo.App. 1983). However, to limit the 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 terminate employment relationship).
However, compensability may exist even if the claimant is injured after violating a general directive to cease work. See Butland v. Industrial Claim Appeals Office, 754 P.2d 422
(Colo.App. 1988); Nielsen v. PXC Denver, W.C. No. 4-241-772 (March 5, 1996) (injury in auto accident compensable where there was no specific order precluding claimant from driving company vehicle in bad weather). In Butland, the claimant was employed at a racetrack. One day the employer gave the claimant and several other employees several hours off work. The claimant remained on the employer’s premises and was later injured while helping repair a grader which was used to grade the track. The employer did not tell the claimant to repair the grader, and the claimant’s injury occurred during a technical violation of the employer’s general directive to take the rest of the day off. However, the court determined that the claimant’s injury occurred while he was performing work which furthered the interests of the employer, and that the benefits flowing to the employer outweighed the significance of the claimant’s action in violating the general directive. Under these circumstances, the claimant’s injury was found to have occurred in the course and scope of his employment.
In reaching this conclusion, the Butland court expressly relied upon Maintenance Management Inc. v. Tinkle, 40 Colo. App. 80, 570 P.2d 840 (1977). In Tinkle, 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. However, the court concluded that the employee was acting with the intent of benefitting the employer. Under these circumstances, the court concluded that the injury was compensable. We conclude that the facts of this case are analogous to the facts in Tinkle and Butland.
Here, as in Tinkle and Butland, the claimant’s injury occurred at a time when he was relieved of his duties and not required to be on the employer’s premises. However, the record does not contain evidence of a specific directive prohibiting the claimant going to the employer’s premises or working on May 9, 1996.
Furthermore, notwithstanding the employer’s arguments, there is substantial evidence in the claimant’s testimony to support the ALJ’s finding that the claimant was acting for the benefit of the employer by going to the employer’s premises on May 9. The claimant testified that his job duties required him to keep employee evaluations. (Tr. p. 13). However, he testified that some of his personal notes concerning those evaluations were based upon “private” conversations, and if the notes “fell into the wrong hands” it could result in “repercussions” and “trouble” for the employer. (Tr. pp. 13, 15, 17, 43). He stated that he intended to destroy the documents to “protect” the employer. (Tr. p. 45). The employer’s witnesses did not contradict the claimant’s testimony. Therefore, the ALJ could reasonably infer that the claimant was injured while acting for the benefit of the employer, and that the benefit outweighed the claimant’s action in returning to work during his medical leave of absence. Thus, the record supports the conclusion that the claimant’s back injury arose out of and in the course of his employment. Maintenance Management Inc. v. Tinkle, supra.
The employer’s remaining arguments have been considered and are unpersuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 2, 1997, 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed February 26, 1998 to the following parties:
James Bates, Jr., 11378 West Dumbarton Dr., Littleton, CO 80127
Rick Hindman, Esq., Coors Brewing Company, BC 580, Golden, CO 80401
Coors Brewing Co., Inc., MAIL #CE 337, Golden, CO 80401-0836
Sandy Maez, CNA Insurance, P.O. Box 17369, T.A., Denver, CO 80217
Peter McGuire, Esq., 1325 S. Colorado Blvd., Ste. 405, Denver, CO 80222 (For the Claimant)
Thomas O. McBride, Esq., 777 E. Speer Blvd., Ste. 210, Denver, CO 80203 (For the Respondent)
BY: ________________________________