W.C. No. 4-470-107Industrial Claim Appeals Office.
March 1, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ), which reduced the claimant’s workers’ compensation benefits pursuant to § 8-42-112(1)(b), C.R.S. 2001. We affirm.
On August 5, 2000, the claimant suffered a compensable injury to his right foot while delivering food to inmates. The claimant was pushing one food cart and pulling another when one of the carts rolled over his foot. As a result of the injury, the claimant was awarded temporary disability benefits.
Section 8-42-112(1)(b) provides that, “where the injury results from the employee’s willful failure to obey any reasonable rule adopted by the employer for the safety of the employee,” workers’ compensation disability benefits shall be reduced fifty percent. To impose penalties under § 8-42-112(1)(b), the respondents must show that the claimant’s failure to obey the safety rule was the result of “willful” conduct City of Las Animas v. Maupin, 804 P.2d 285 (Colo.App. 1990). The term “willful” means with “deliberate intent” as opposed to mere thoughtlessness, forgetfulness, or negligence. Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968); Johnson v. Denver Tramway Corp., 115 Colo. 214, 171 P.2d 410 (1946).
The question of whether the respondents proved the claimant’s injury was the result of a deliberate violation of a reasonable safety rule is one of fact for determination by the ALJ. See Lori’s Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995). Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in record. Section 8-43-301(8), C.R.S. 2001.
On conflicting evidence the ALJ found the respondents sustained their burden of proof for the reduction of benefits under § 8-42-112(1)(b). In support, the ALJ found the food carts were very heavy and difficult to start and stop. As a result, several employees had suffered foot injuries while moving the carts. The ALJ determined that to reduce the number of injuries, the employer adopted a reasonable safety rule which prohibited employees from moving more than one cart at a time. Crediting the testimony of the employer’s witnesses, the ALJ found the claimant was aware of the rule and deliberately disregarded the rule on August 5. Further, the ALJ rejected the claimant’s testimony that he was moving two carts at a time. Consequently, the ALJ was not persuaded the claimant had a plausible purpose for the violation.
The claimant’s Petition to Review contains general allegations of error under § 8-43-301(8), C.R.S. 2001, and requests an order remanding the matter to the ALJ with directions to enter an order finding the claimant did not willfully violate a safety rule. However, the claimant has not filed a brief in support of the petition to review. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Section 8-43-301(8) precludes us from disturbing the ALJ’s order unless the ALJ’s findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ’s findings, the findings do not support the order, or the order is not supported by the applicable law.
We have reviewed the record and the ALJ’s finding of fact. The order reflects the ALJ’s consideration of the applicable legal standard for the reduction of benefits under § 8-42-112. Further, the ALJ’s findings are sufficient to permit appellate review, and the findings indicate that the ALJ resolved conflicts in the evidence based upon her credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The evidence is subject to conflicting inferences. However, the ALJ’s findings are plausible inferences drawn from substantial evidence in the record and, therefore, are binding on review. See Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Further, the ALJ’s factual determinations support the conclusion the claimant’s injury was the result of his willful violation of a reasonable safety rule. See Industrial Commission v. Golden Cycle Corp., 246 P.2d 902
(Colo. 1952). Therefore, the claimant has failed to establish grounds which afford us a basis to grant appellate relief.
IT IS THEREFORE ORDERED that the ALJ’s order dated June 12, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Robert M. Socolofsky
NOTICEThis 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, within twenty (20)days after the date this Order is mailed, pursuant to § 8-43-301(10)and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy ofthe petition upon all other parties, including the Industrial Claim AppealsOffice, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350,Denver, CO 80202.
Copies of this decision were mailed March 1, 2002 to the following parties:
William Cornett, 624 Fountain Mesa Rd. Fountain, CO 80817
Patsy Michaud, Department of Corrections, 2862 S. Circle, #400, Colorado Springs, CO 80906
State of Colorado, 1313 Sherman St., #114, Denver, CO 80203
Legal Department, Pinnacol Assurance — Interagency Mail
Paul Finamore, Pinnacol Assurance — Interagency Mail
James R. Koncilja, Esq., 125 W. “B” St., Pueblo, CO 81003 (For Claimant)
Herbert S. Schiff, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903 (For Respondents)
BY: A. Pendroy