W.C. No. 4-561-352Industrial Claim Appeals Office.
April 29, 2004
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which determined the respondents failed to prove grounds for the reduction of benefits under § 8-42-112(1)(b), C.R.S. 2003. We affirm.
Section 8-42-112(1)(b) authorizes a fifty percent reduction in compensation for a “willful failure to obey any reasonable rule adopted by the employer for the safety of the employee.” In order for the violation to be willful, the respondents must prove the claimant acted with deliberate intent. Johnson v. Denver Tramway Corp., 115 Colo. 214, 171 P.2d 410 (1946).
The claimant was employed as a “stomper,” which required him to walk along an elevated wall and clean garbage off the sides of trailers as they were being loaded below with trash. On November 27, 2003, the claimant was injured while cleaning the side of a trailer. The ALJ found that at the time of the injury, the claimant was attempting to dislodge a hose from the trailer. To get better leverage, the claimant jumped off the wall to the “floor” below where front-end loaders were loading the trailer with trash. The claimant was struck in the back by a front-end loader.
The ALJ found the employer had a rule that prohibited employees from being on the floor when a front-end loader was operating. The ALJ also determined the claimant violated the rule. However, the ALJ found the claimant was not aware of the rule at the time of the accident. In support, the ALJ found the rule was not posted, the claimant was not told of the rule when he was hired and trained, and the rule was not discussed at the one safety meeting the claimant attended. Therefore, the ALJ found the claimant’s violation of the rule was not intentional and denied the respondents’ request for a safety rule penalty.
On review, the respondents contend the claimant’s testimony compels a finding that the claimant was aware of the safety rule which prohibited him from being on the floor when a front-end loader was moving. Therefore, the respondents argue the record is contrary to the ALJ’s finding that the claimant was not aware of the safety rule at the time of the violation. We reject this argument.
The question of whether the claimant knew of the safety rule is one of fact for determination by the ALJ. City of Las Animas v. Maupin, supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving and Storage Co., 914 P.2d 411 (Colo.App. 1995).
On cross-examination, the claimant denied he was trained not to be on the floor when the loaders were moving. The claimant also denied attending any safety meeting where the employer’s prohibition against being on the floor when a front-end loader was moving was discussed. (Tr. p. 44). However, the claimant admitted his job duties required him to walk along the elevated wall and clean up trash that fell on the wall. As the respondents point out, the following exchange then occurred:
Respondents’ Counsel: “So when the front-end load is moving on the floor, you are not to be on the floor, is that right?”
Claimant: “Yes.”
Respondents’ Counsel: “And your job is to remain on the elevated walkway and clean what spills onto the hallway.”
Claimant” Yes.” (Tr. p. 44).
We do not disagree with the respondents’ assertion that this testimony could be interpreted to reflect the claimant’s admission that, he was aware at the time of the injury of the employer’s safety rule prohibiting employees from being on the floor when a front-loader was moving on the floor. However, the quoted testimony does not conclusively establish what the claimant knew and when he knew it. In view of the claimant’s testimony that he had not been trained by the employer to stay on the elevated wall at all times when a front- end loader was moving below, the claimant’s testimony could simply convey that the claimant had become aware of the employer’s expectation by the time of the hearing.
It was the ALJ’s sole province to determine the inference to be drawn and we may not substitute our judgment for that of the ALJ. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990); Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985). Moreover, the claimant’s testimony that he was not informed of the employer’s safety rule is substantial evidence to support the ALJ’s finding that the claimant was not aware of the employer’s safety rule at the time of the injury.
We note the claimant’s contention that at best, his testimony reflects his recognition that it is “common sense” not to be on the floor when a front loader was moving. (See Reply Brief, March 2, 2004). Even if this is true, the term “willful” does not include the negligent deviation from safe conduct dictated by common sense. See Johnson v. Denver Tramway Corp., supra. (a willful violation is “not mere negligence, inadvertence, or forgetfulness”).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 15, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
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. 2003. 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 order were mailed to the parties at the addresses shown below on April 29, 2004 by A. Hurtado.
Alfonso F. Gutierrez, P. O. Box 12228, Denver, CO 80212
Seven Hills Trucking, Inc., c/o Onepoint Employer Solutions, 5655 S. Yosemite St., #100, Englewood, CO 80111-3218
Legal Department, Pinnacol Assurance — Interagency Mail
Janie C. Castaneda, Esq. and John W. Swanson, Esq., 1120 Lincoln St., #703, Denver, CO 80203 (For Claimant)
Dawn Yager, Esq. and T. Paul Krueger, II, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)