W.C. No. 4-347-150Industrial Claim Appeals Office.
November 25, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Gandy (ALJ), which reduced his compensation for temporary disability benefits due to willful violation of a safety rule. We affirm.
The claimant did not file a brief in support of his petition to review. The only issue raised in the petition is the argument that the record does not contain evidence to support the ALJ’s finding that the claimant’s violation of the safety rule was willful.
The ALJ found that the claimant violated a safety rule by failing to “lock out/tag out” a piece of machinery prior to breaking the machine’s “plane of operation.” Because of the claimant’s failure to lock out the machine it snapped shut injuring the claimant’s hand.
The ALJ also found that the claimant’s failure to lock out the machine constituted a “deliberate and willful act.” In support of this determination, the ALJ found that the claimant underwent an extensive training program concerning the “lock out/tag out” procedure. Further, the claimant passed a written examination establishing his understanding of the rule, and he signed a document stating that he was trained in the procedure. Moreover, the ALJ discredited the claimant’s testimony that violation of the rule resulted from a supervisor’s decision to emphasize speed over safety.
Under § 8-42-112 (1)(b), C.R.S. 1998, a claimant’s compensation may be reduced fifty percent for “willful failure to obey any reasonable rule adopted by the employer for the safety of the employee.” In order to establish a “willful” violation, the respondent must show that the claimant acted with “deliberate intent.” Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968). A finding of willful conduct may be negated if the evidence demonstrates that the employer knowingly acquiesced in violations of the rule. See Lori’s Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715
(Colo.App. 1995).
The question of whether the respondent carried its burden of proof to establish willful conduct is one of fact for determination by the ALJ. See Lori’s Family Dining, Inc. v. Industrial Claim Appeals Office, supra. Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence. Section 8-43-301(8), C.R.S. 1998. The substantial evidence test requires us to defer to the ALJ’s resolution of conflicts in the evidence, his creditability determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
The claimant’s assertion notwithstanding, the record contains substantial evidence to support the ALJ’s finding of willful violation of a safety rule. The evidence shows that the claimant received training about the safety rule within two or three months of the day he sustained the injury. The rule was emphasized to the claimant by requiring him to sign a document acknowledging the rule, and by requiring him to take a written test to demonstrate an understanding of the rule. Moreover, the ALJ resolved conflicts in the evidence and found that the employer did not acquiesce in any rule violation by emphasizing speed over safety.
Under these circumstances, the record supports the ALJ’s finding that the claimant willfully violated the rule because he understood it and intentionally did the prohibited act. Bennett Properties Co. v. Industrial Commission, supra. Although there is no direct evidence of the claimant’s state of mind, other than the claimant’s own discredited testimony, the ALJ could infer that the claimant had the requisite state of mind. Consequently, we decline to substitute our judgment for that of the ALJ concerning the factual issue of willfulness.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 27, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed November 25, 1998
to the following parties:
Steve Flores, Reidar O. Hammond, Esq., 1020 9th Street, Ste. 206, Greeley, CO 80631
Monfort, Inc., Attn: Julie Frantz, P.O. Box G, Greeley, CO 80632
Reidar O. Hammond, Esq., 1020 9th Street, Ste. 206, Greeley, CO 80631 (For Claimant)
Andrew R. Bantham, Esq., 2629 Redwing Road, #330, Fort Collins, CO 80526 (For Respondent)
BY: ______________________