W.C. No. 4-418-465Industrial Claim Appeals Office.
August 25, 2000
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Hopf (ALJ) which determined the respondents are not entitled to reduce the claimant’s compensation by fifty percent because of the claimant’s violation of a safety rule. The respondents contend the ALJ erred as a matter of fact and law in determining the claimant did not act “willfully” because he had a “plausible reason” for violating the rule. The respondents further contend the ALJ erred in determining the claimant’s violation of the rule was not the cause of the injury. We affirm.
The ALJ found the claimant, an electrician, received an electric shock on April 14, 1999, while performing services for the respondent employer. The shock caused the claimant to fall from a ladder and sustain compensable injuries. The issue presented was whether the respondents properly reduced the claimant’s compensation by fifty percent because the claimant violated the employer’s “lock-out tag-out” rule.
The ALJ found the employer conducted a safety meeting on the morning of the claimant’s injury. At the meeting employees were instructed to tie and tape tags to individual circuit switches prior to commencing work on the circuit. The purpose of the rule was to notify and warn other employees that the tagged circuits were intentionally shut off.
On the day of the injury the claimant was required to work on wires activated by circuits 1 and 4. The ALJ found the claimant “chose to attach the tags to the outside of the panel box” rather than to the individual switches because he believed the tags were not as likely to fall off and negate proper warning. The claimant then proceeded to a worksite some distance from the panel box, tested the wires to insure there was no current, and began work. Shortly thereafter the claimant received a shock while working on a wire activated by circuit 4.
The ALJ concluded the respondents failed to prove the claimant “willfully” violated the employer’s safety rule. In support, the ALJ found the claimant acted inconsistently with instructions given at the safety meeting, but his actions constituted a “plausible reason for attaching the tags to the panel box rather than the circuits 1 and 4.” The ALJ further found the respondents failed to prove the “tag-out procedure was the cause” of the injury.
I.
On review, the respondents contend the ALJ misapprehended the meaning of “willful” misconduct, and that the evidence requires a conclusion the claimant willfully violated the safety rule. The respondents reason the claimant was clearly aware of the tag-out policy, but consciously elected to disregard the policy. We perceive no error.
Section 8-42-112(1)(b), C.R.S. 1999, provides for a fifty percent reduction in compensation “where injury results from the employee’s willful failure to obey any reasonable rule adopted by the employer for the safety of the employee.” The burden of proof is on the respondents to establish that the claimant willfully violated the safety rule, and resolution of this issue is generally one of fact for determination by the ALJ. Lori’s Family Dining, Inc., v. Industrial Claim Appeals Office, 907 P.2d 715
(Colo.App. 1995). As the ALJ correctly recognized, an employee’s violation of a safety rule need not be considered willful if the employee had some “plausible purpose to explain his violation a rule.” City of Las Animas v. Maupin, 804 P.2d 285 (Colo.App. 1995). Generally, an employee’s violation of a rule in an attempt to facilitate accomplishment of the employer’s business does not constitute willful misconduct. However, an employee’s violation of a rule for the purposes of making the job easier and speeding operations is not considered a “plausible purpose.” 2 Larson’s Workers’ Compensation Law, § 35.04.
Because the question of whether the respondents proved a willful violation is one of fact, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. 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 record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The respondents’ argument notwithstanding, the record contains substantial evidence to support the ALJ’s finding the respondents failed to prove a “willful” violation of the rule. The claimant testified that he decided to affix the tags to the outside of the panel box in an effort to prevent them from coming loose and falling. (Tr. pp. 62, 69). Indeed, the claimant’s supervisor conceded there was some possibility the tags would have fallen or pulled loose, even if taped to the switches. (Tr. pp. 52 — 53). Thus, the claimant’s purpose for deviating from the employer’s rule was to enhance the safe completion of the work, not an attempt to circumvent safety rules for the purpose of making the work easier or faster. Although the claimant’s judgment may have been faulty concerning the advisability of this procedure, the ALJ need not have found the claimant acted with “deliberate intent” when violating the rule. See Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968).
II.
The respondents next challenge the ALJ’s finding that they failed to establish the claimant’s violation of the tag-out rule “was the cause of his injury.” The respondents argue the ALJ misapplied the law because, under § 8-42-112(1)(b), the issue is whether the claimant’s injury “results” from the failure to obey a safety rule, not whether the failure to obey the rule “caused” the injury. Further, the respondents argue the evidence compelled the ALJ to find the claimant’s compliance with the safety rule “would have prevented the injury.” We are not persuaded.
It is true that § 8-42-112(1)(a) C.R.S. 1999, states that failure to use a safety device must be the “cause” of the injury, while § 8-42-112(1)(b) states that failure to follow a reasonable safety rule must “result” in the injury. However, we attach no significance to this distinction. Former § 8-42-112(1)(c) [currently codified at § 8-42-112.5(1)] provides for a fifty the percent reduction of compensation where the injury “results from the intoxication of the employee.” The courts have long interpreted subsection (1)(c) to mean “the intoxication of claimant must be a proximate cause of the injury.” Stearns-Roger Manufacturing Co. v. Casteel, 128 Colo. 289, 261 P.2d 228, 232
(1953). We see no basis for concluding that the term “results” has any different meaning in subsection (1)(b) than it does in subsection (1)(c). Therefore, the correct test is whether the claimant’s injury was proximately caused by violation of the safety rule, and we see no basis for concluding the ALJ misapplied the test.
The question of whether the respondents proved the claimant’s violation of the safety rule was a proximate cause of the injury is one of fact for determination by the ALJ. Tatum-Reese Development Corp. v. Industrial Commission, 30 Colo. App. 149, 490 P.2d 94 (1971). The mere concurrence of an injury and an alleged cause does not require the ALJ to draw the inference of causation See J.C. Carlile Corp. v. Anataki, 162 Colo. 376, 426 P.2d 549
(1967) (under prior statute, blood alcohol level of .173 did not require inference that decedent’s automobile accident was caused by intoxication). Because the issue is factual in nature, we must uphold the ALJ’s finding if supported by substantial evidence.
Contrary to the respondents’ contention, this record did not require the ALJ to find a causal relationship between the claimant’s alleged violation of the safety rule and the subsequent injury. The ALJ did not expressly determine whether another person reactivated circuit 4 after the claimant turned the circuit off and left the panel box, or whether the claimant forgot to deactivate circuit 4. However, in either event, the ALJ was not required to infer that attaching tags to the switches rather than the panel box would have prevented the claimant’s injury. Assuming, arguendo, that the claimant forgot to disable circuit 4, that mistake may well have occurred whether or not the claimant placed the tags on the switch or on the panel box. If another employee activated circuit 4, the employee may have ignored or overlooked the tags attached to the outside of the panel box. An employee careless enough to ignore or overlook the tags on the outside of the box might well have done the same had the tags been attached to specific switches inside the box. Alternatively, an employee may have accidentally activated circuit 4 by bumping into the switch. In any of these scenarios, the claimant’s failure to follow the safety rule would not have been a proximate cause of the injury because the injury would have occurred regardless of the tag placement. Consequently, we cannot say the ALJ erred by concluding the respondents failed to establish that violation of the safety rule was a proximate cause of the claimant’s injury.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 8, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 1999. 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 August 25, 2000 to the following parties:
James Grose, 12144 Newport Dr., Brighton, CO 80601
Riviera Electric, 2107 W. College Ave., Englewood, CO 80110
Insurance Company of the State of Pennsylvania, Tina Gustafson, AIGCS, P. O. Box 32130, Phoenix, AZ 85064
Dennis E. Valentine, Esq., 1563 Gaylord St., Denver, CO 80206 (For Claimant)
James R. Fairbanks, Esq., and Prentice R. Ehret, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy