W. C. No. 4-700-124.Industrial Claim Appeals Office.
July 13, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated January 12, 2006, that determined the claimant did not suffer a compensable workers’ compensation injury. We affirm.
The petition to review contains only general allegations of error, derived from § 8-43-301(8), C.R.S. 2006. Moreover, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
The ALJ’s pertinent findings of fact are as follows. The claimant and his partner were using scaffolding. Two supervisors noticed problems with the scaffolding. The claimant was directed by his supervisor to cease using the scaffolding until replacement parts could be obtained. The claimant was told he could wait for replacement parts or go home. The supervisors removed the wheels, side rails and plank from the scaffolding so that it was unusable. The supervisors then left. The claimant waited for approximately 30 to 40 minutes for new parts but they did not arrive. The claimant then decided to rebuild the scaffolding and continue working. The claimant testified that he was on the scaffolding approximately five to six feet off the ground when he fell. The claimant was taken by ambulance to an emergency room. The ALJ found that the claimant had failed to establish that the fall was proximately caused by an injury arising out of and in the course of his employment. He concluded that the employer’s specific directive to the
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claimant temporarily limited his sphere of employment, and that the claimant’s injury occurred while the claimant was violating that specific directive. Accordingly, he denied and dismissed the claim for compensation.
The claimant had the burden to prove that his alleged disability was proximately caused by an injury arising out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. 2006. Whether the claimant met that burden of proof is a factual question for resolution by the ALJ, and his determination must be upheld if supported by substantial evidence in the record. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998).
We conclude that the ALJ correctly considered and applied the relevant law to the circumstances established by his factual findings. As a general rule, an employer has the right to issue directives concerning what an employee may do, and when he may do it. Directives of this type regulate the “sphere” of employment, and if an employee sustains an injury while violating such a directive the injury is not compensable Bill Lawley Ford v. Miller, 672 P.2d 1031 (Colo.App. 1983). The defense based upon limiting the sphere of employment requires a specific instruction designed to suspend the relationship of employer and employee for a temporary time period. See Ramsdell v. Horn, 781 P.2d 150
(Colo.App. 1989).
Here, the ALJ found that the employer specifically instructed the claimant to cease working on the defective scaffold until replacement parts could be obtained and installed. The claimant has failed to provide a transcript of the hearing and, therefore, we must presume that the ALJ’s factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). This factual finding supports the ALJ’s conclusion that the specific directive issued by the claimant’s supervisors limited the claimant’s sphere of employment by requiring him to cease working, on a temporary basis, until the scaffolding was properly assembled with the correct parts. In reaching his conclusion the ALJ correctly stated the law and considered the factors relevant to the determination whether the claimant’s sphere of employment was restricted by the employer’s instructions. See In re Nielsen, W.C. No. 4-241-772 (March 5, 1996).
Under § 8-43-301(8), C.R.S. 2006 we are precluded from disturbing the ALJ’s order unless the findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the findings, the order is not supported by the findings, or the order is not supported by applicable law. We perceive no basis upon which to set aside the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 12, 2006, is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
Urbano Escobedo, Aurora CO.
Castaneda Law Office, Janie C. Castaneda, Denver CO, (For Claimant)
Midwest Drywall Company, Inc., Denver, CO.
Lynda Newbold, Esq., Blackman Levine, L.L.C., Denver CO, (For Respondents).
EMC Risk Services, L.L.C., Kathy Sanders, Des Moines, IA.