W.C. No. 4-335-104Industrial Claim Appeals Office.
February 19, 1999.
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Atencio (ALJ) which reduced his compensation by 50 percent on account of the violation of two safety rules. The claimant contends the evidence does not support the award because the ALJ improperly inferred willful misconduct from the mere occurrence of the accident. The claimant further contends that any violations he committed were not willful because the respondent-employer (Metro) did not enforce its safety rules. We affirm.
The claimant was injured on April 14, 1997, when he rolled Metro’s service truck on a rural road. The respondents admitted liability for the injury but claimed a 50 percent reduction in compensation on account of the claimant’s failure to obey company rules requiring the safe operation of vehicles and the wearing of seatbelts. The claimant admitted that he was aware of the company rules, and their existence is not now disputed.
The rollover accident occurred when the claimant failed successfully to negotiate a curve on the dirt road. The claimant admitted that a safe speed in the curve was 30 to 35 mph. However, the respondents presented testimony from an accident reconstruction expert and a state trooper who opined that the claimant was traveling between 50 and 60 mph at the time he entered the curve. These opinions were based on tire marks at the scene and evidence the claimant “cut the corner” by entering the curve from the opposite traffic lane.
The respondents also presented expert evidence that the claimant was thrown from the vehicle and seriously injured because he was not wearing his seatbelt. The claimant presented evidence that the seatbelt failed, and that it was his habit to wear a seatbelt.
The ALJ concluded that the claimant willfully violated Metro’s safety rule requiring the safe operation of vehicles. In so doing, the ALJ found that a road sign, posted within one and one-half miles of the accident site, warned of a winding road ahead. The ALJ determined that a safe speed for negotiating the curve was 35 mph, and credited the respondents’ expert evidence that the claimant cut the corner while traveling between 50 and 60 mph. The ALJ also stated that the claimant presented “no credible evidence” that the “speeding was due to inattention or mere negligence.” (Finding of Fact 47).
The ALJ further found that the claimant willfully violated Metro’s seatbelt rule. In support, the ALJ found that the claimant was aware of the rule, and testified that he always obeyed it. The ALJ also cited evidence that the claimant habitually used seatbelts.
I.
On review, the claimant first contends that the evidence does not support the ALJ’s finding of willful violations of the safe driving and seatbelt rules. The claimant asserts that the ALJ inferred willful conduct from the mere facts that an accident occurred and that the claimant was aware of the rules. The claimant further asserts that the ALJ misapplied the burden of proof because she found the claimant failed to produce credible evidence that the “speeding was due to inattention or mere negligence.” We disagree with these arguments.
Section 8-42-112(1)(b), C.R.S. 1998, provides for a 50 percent reduction in compensation where the injury results from the claimant’s “willful failure to obey any reasonable rule adopted by the employer for the safety of the employee.” As the claimant argues, the respondents bear the burden of proof to establish that the claimant willfully violated the employer’s rules. Lori’s Family Dining, Inc., v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995).
The claimant’s conduct is “willful” if he intentionally does the forbidden act, and it is not necessary for the respondents to prove that the claimant had the rule “in mind” and determined to break it. Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968); see also Sayers v. American Janitorial Service, Inc., 162 Colo. 292, 425 P.2d 693 (1967) (willful misconduct may be established by showing a conscious indifference to the perpetration of a wrong, or a reckless disregard of the employee’s duty to his employer). Moreover, there is no requirement that the respondents produce direct evidence of the claimant’s state of mind. To the contrary, willful conduct may be inferred from circumstantial evidence including the frequency of warnings, the obviousness of the danger, and the extent to which it may be said that the claimant’s actions were the result of deliberate conduct rather than carelessness or casual negligence. Bennett Properties Co. v. Industrial Commission, supra; Industrial Commission v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952). Indeed, it is a rare case where the claimant admits that his conduct was the product of a willful violation of the employer’s rule.
Ultimately, the question of whether the respondents proved that the claimant’s violation of the rule was willful is one of fact for determination by the ALJ. Industrial Commission v. Golden Cycle Corp., supra. Thus, we must uphold the ALJ’s finding that the claimant willfully violated the rules if supported by substantial evidence in the record. Section 8-43-301(8), C.R. S. 1998. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). Moreover, the ALJ is not required to make findings of fact concerning every piece of evidence. Rather, it is sufficient for the ALJ to make findings concerning that evidence which she found to be determinative of the issues involved. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
The claimant’s argument notwithstanding, the record contains substantial evidence from which the ALJ could infer that the claimant willfully drove at an unsafe speed in violation of Metro’s rule. First, not even the claimant denies being aware of the rule, and the respondents produced evidence that the rule was published to the claimant on several occasions, including the year before the injury. Second, the ALJ found, on conflicting evidence, that a road sign was posted near the accident scene which warned the claimant of a winding road ahead. Finally, the ALJ credited expert evidence indicating the claimant was driving a minimum of 15 mph, and as much as 25 mph, above the safe speed, and that he cut the corner as a race car driver might. These facts constitute ample evidence from which a reasonable person could infer that the claimant deliberately drove at an unsafe speed, and that his actions were not the product of mere negligence or inadvertence. Thus, this is not a case where the ALJ inferred willfulness from the mere facts that the claimant knew the rule and that an accident occurred.
Similarly, the record supports the ALJ’s inference that the claimant deliberately refused to wear a seatbelt. Again, the claimant admits knowing the seatbelt rule and claims to have abided by it. In fact, the claimant produced evidence that it was his “habit” to wear a seatbelt. Nevertheless, the ALJ was persuaded by expert opinion that the claimant was thrown from the vehicle because he was not wearing a seatbelt at the time of the accident. Because the claimant insisted that the wearing of seatbelts was nearly automatic, the ALJ could logically infer that his failure to do so in this instance was the product of a deliberate act, not mere inadvertence or negligence. Cf. Patterson v. Triple E Trucking, W.C. No. 4-023-341 (May 20, 1992).
Neither does the ALJ’s order reflect a misapplication of the burden of proof. The ALJ cited evidence which, in her view, proved that the claimant acted willfully in violating the rules. The ALJ’s statement that the claimant failed to present credible evidence of negligence or inattention, when read in context, merely constitutes a finding that the claimant failed to go forward with persuasive evidence rebutting the respondents’ prima facie case of willfulness. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
II.
The claimant next contends the evidence does not support the ALJ’s finding that Metro enforced its rules. The claimant acknowledges that Metro established the “STOP Program” under which employees were advised of safety violations and records of the violations were maintained. However, the claimant argues that the simple act of advising employees of rule violations is inadequate to establish true enforcement absent any evidence that employees were “punished” for their violations. The claimant also relies on evidence that some employees were issued traffic tickets but not disciplined by Metro. We find no error.
The determination of whether the employer acknowledged and acquiesced in employee misconduct by failing to enforce its own rules is one of fact for determination by the ALJ. Lori’s Family Dining Inc. v. Industrial Claim Appeals Office, supra. In resolving the issue, the ALJ may consider the extent of enforcement, but “enforcement is not necessarily synonymous with application of outright penalties.” 2 Larson’s Workers’ Compensation Law, § 33.30.
Here, the record contains conflicting evidence concerning the extent to which Metro enforced its rules. The ALJ credited Metro’s evidence that it has an active safety policy which requires that employees be notified of safety violations when they are observed. Further, Metro produced records demonstrating that employees have been advised of numerous violations, including traffic violations. Under these circumstances, we cannot say the ALJ erred as a matter of law in finding that Metro enforced the company safety rules and did not acquiesce in employee misconduct or convey the impression that rule violations would be tolerated. Neither can we say that the ALJ’s finding is incorrect simply because Metro chose to enforce its policies by issuing verbal warnings rather than through more punitive measures.
It is true that some evidence in the record, including that cited in the claimant’s brief, might have supported contrary findings and conclusions. However, the mere existence of conflicting evidence affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 28, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain ________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1998.
Copies of this decision were mailed February 19, 1999 to the following parties:
Mark E. Gargano, P. O. Box 33025, Northglenn, CO 80233
Robert Hoskins, Metro Wastewater Reclamation District, 6540 York St., Denver, CO 80229-7499
Brandee DeFalco-Galvin, Colorado Compensation Insurance Authority — Interagency Mail (For Respondents)
Rebecca A. Koppes Conway, Esq., 912 8th St., Greeley, CO 80631 (For Claimant)
Glen B. Goldman, Esq., 999 18th St., Suite 3100, Denver, CO 80202
By: _______________