W.C. No. 4-494-672Industrial Claim Appeals Office.
March 25, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which awarded temporary disability benefits. The respondents contend the ALJ erroneously found the claimant suffered compensable injuries. We disagree and, therefore, affirm.
The claimant was employed as an account executive for Corporate Express. The job required the claimant to travel in his car to meet with customers and associates. The claimant testified he was out of the office 90 percent of the time and that he had no set schedule of work hours. (Tr. p. 12).
The claimant testified that on March 5, 2001, he was driving to a business meeting when another driver encroached on his traffic lane while making a U-turn in violation of posted signs. The claimant stated he was afraid the other driver was going to run into him so he honked his horn. Shaken by the near accident, and suspecting the other driver was following him, the claimant drove to a nearby parking lot to calm down before his meeting. However, as he was sitting in his car with the window down, the other driver approached him and spat in his face. The other driver then preceded to pull the claimant from his car and beat him about the head. (Tr. pp. 13, 34, 36). As a result of the assault, the claimant suffered injuries to his face, head, neck and back which temporarily precluded him from returning to his regular employment.
Relying on In Re Questions Submitted by U.S. Court of Appeals, 759 P.2d 17 (Colo. 1988) and Tolbert v. Martin Marietta, 759 P.2d 17 (Colo. 1988), the ALJ determined the assault was caused by a “neutral force,” which arose out of and in the course of employment. Further, the ALJ found the claimant would not have been injured but for the obligations of the claimant’s employment which placed him in a position where any other person then and there present would have been assaulted by the unknown driver. Therefore, the ALJ determined the claimant’s injuries were compensable.
In Colorado, an injury is compensable if it “arises out of” and “in the course of employment.” Section 8-41-301(1)(b), C.R.S. 2001. The course of employment requirement is satisfied when the employee shows that the injury occurred within the time and place limits of the employment. Popovich v. Irlando, 811 P.2d 379, 293 (Colo. 1991). An injury “arises out of employment” when it has its origin in an employee’s work-related functions, and is sufficiently related to the employment to establish a casual connection between the employment and the injury. Popovich v. Irlando, supra; Ventura v. Albertsons, Inc., 856 P.2d 35
(Colo.App. 1992).
The respondents do not dispute the claimant was in the course of employment at the time of the assault. Instead the respondents contend the assault was motivated by a personal dispute and therefore, did not “arise out of” the employment. We perceive no error.
The law has identified three categories of causation for willful work-place assaults. The first category is assaults that have an inherent connection to the employment. In Re Questions Submitted by U.S. Court of Appeals, supra; Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996). Under this category injuries suffered during an assault are compensable if the assault grew out of an argument over performance of work, possession of work tools or equipment, delivery of a paycheck, quitting or being terminated.
The second category is assaults result from a “neutral force”. See Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991); In Re Questions Submitted by U.S. Court of Appeals, supra. A “neutral force” is one that is neither particular to the claimant nor the employment. Instead, the only relationship to the employment is that the conditions and obligations of the employment placed the claimant in the position where he was attacked. This type of assault has been analyzed under the “positional risk” doctrine.
The “positional risk” doctrine is applied to injuries which result from stray bullets, roving lunatics, drunks, assaults by mistake and completely unexplained attacks. In Re Questions Submitted by the U.S. Court of Appeals, 759 P.2d 17. In such circumstances, the force is neutral because any person then and there present would have been assaulted. In Re Questions Submitted by U.S. Court of Appeals, 759 P.2d at 22.
The third category is assaults which are the result of a private dispute which the parties import to the work place. A work place assault is compensable unless it arises from a private or personal dispute. In Re Questions Submitted by U.S. Court of Appeals, supra. Thus, the critical issue is whether the assault of the claimant was motivated by a private dispute imported to the work place.
Determining the motivation for a work-place assault is largely a factual issue and must be ascertained by examining the circumstances in each individual case. See Popovich v. Irlando supra; Triad Painting Co. v. Blair, supra; Ferris v. Bakery, Confectionery Tobacco Union, 867 P.2d 38 (Colo.App. 1993). Consequently, where the ALJ’s determination is supported by substantial evidence in the record, it is binding on review. Section 8-43-301(8), C.R.S. 2001. Application of the substantial evidence test requires that we defer to the ALJ’s credibility determinations, her resolution of conflicts in the evidence, and her assessment of the sufficiency and probative value of the evidence she found persuasive. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998); Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155
(Colo.App. 1993). Accordingly, the fact that the record contains some evidence which, if credited, might support a contrary result is immaterial on review. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985).
The respondents contend the assault was the result of a personal dispute caused by the verbal exchange between the claimant and the assailant after the assailant’s illegal U-turn. However, the record does not support the respondents’ contention there was any verbal exchange after the illegal U-turn. (Tr. pp. 13, 34-36).
Next, the ALJ implicitly rejected the respondents’ contention the claimant was the instigator of the assault by honking his horn when the assailant’s vehicle encroached on his lane of traffic. In any case, Colorado does not treat evidence the claimant was the initial aggressor as a bar to the claimant’s recovery. Triad Painting Co. v. Blair, supra.; Banks v. Industrial Claim Appeals Office, 794 P.2d 1062 (Colo.App. 1990); A. Larson, Workers’ Compensation Law § 8.01(5)(a) (2001).
Further, the claimant’s admission that he knew the assailant was following him does not compel a finding the claimant was personally targeted for the assault. Rather, the ALJ reasonably inferred that any driver then present that did anything to warn the other driver of the impending collision have been followed and assaulted by the other driver.
Moreover, Horodyskyj v. Karanian, 32 P.3d 470 (Colo 2001), does not compel a contrary result. In Horodyskyj v. Karanian, supra, the Supreme Court held that sexual harassment by one employee of another employee does not arise out of employment and thus, sexual harassment is not compensable under the Workers’ Compensation Act (Act). Relying on the compensability tests announced in Tolbert v. Martin Marietta, supra, and Popovich v. Irlando, supra, the court concluded that acts of sexual harassment are not neutral and have no inherent connection to the employment. Rather, the court concluded that acts of sexual harassment are “highly personal.” Ibid at 478.
Unlike the facts in Tolbert and Popovich, the parties i Horodyskyj did not concede the alleged acts of sexual harassment were neutral. To the contrary, the plaintiff alleged the sexual harassment originated in personal matters unrelated to work functions. Under these circumstances, the court concluded the claims were not compensable under the Act.
This workers’ compensation claim is not premised on “sexual harassment.” In addition, there is no finding or assertion the assailant’s illegal U-turn or the claimant’s response to the violation was motivated by any personal dispute imported to the claimant’s work-related driving duties. Accordingly, Horodyskyj v. Karanian, supra, is factually and legally distinguishable.
In any case, the claimant’s job duties required him to drive his vehicle to and from meetings with customers. It follows that driving was an inherent work function. It is undisputed the assault was precipitated by events which occurred while the claimant was driving his vehicle for work. Accordingly, the record supports a conclusion the assault arose out of a dispute concerning the performance of the claimant’s job duties. Consequently, the ALJ did not err in finding the claimant sustained his burden to prove the injury arose out of the employment.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 26, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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, 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 of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 25, 2002 to the following parties:
Joseph Garruto, 2135 Rusty Hinge, Colorado Springs, CO 80920
Corporate Express, 4614 Northpark Dr., Colorado Springs, CO 80918
Tina Aichele, GAB Robbins, Inc., P. O. Box 370750, Denver, CO 80237-0750
Zurich Insurance Company, Carol A. Finley, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903
Chad J. Hessel, Esq., 108 E. St. Vrain, #20, Colorado Springs, CO 80903 (For Claimant)
Carol A. Finley, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903 (For Respondents)
BY: A. Pendroy