W.C. No. 4-330-587Industrial Claim Appeals Office.
November 20, 1998
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) which determined the claimant suffered a compensable occupational disease and awarded temporary disability and medical benefits. The respondents contend the ALJ erred in refusing to reduce the claimant’s temporary disability benefits as provided by § 8-42-112(1)(b), C.R.S. 1998. We perceive no error, and therefore, affirm.
Section 8-42-112(1)(b) provides for a fifty percent reduction of temporary disability benefits where the industrial injury “results from the employee’s willful failure to obey any reasonable rule adopted by the employer for the safety of the employee.” A “willful violation is one which results from deliberate intent, and not mere negligence, inadvertence, or forgetfulness. Johnson v. Denver Tramway Corp., 115 Colo. 214, 171 P.2d 410 (Colo. 1946).
On appeal, it is undisputed that the claimant suffered an occupational disease from repetitive reaching and lifting required of her job as a grocery checker at King Soopers. As a result of the injury, the claimant was off work from November 30, 1996 to March 5, 1997. Effective March 5, 1997, the claimant was released the return to modified work which did not require lifting over five pounds. The claimant suffered a further injurious exposure to the hazards of the occupational disease on March 9, 1997, and as a result was reinjured. Thereafter, the claimant was again temporarily totally disabled.
The respondents contend that the employer instructed the claimant to adhere to her five pound lifting restriction, and that the reinjury was caused by the claimant’s failure to adhere to the employer’s instructions. Therefore, the respondents argued that the claimant’s temporary disability benefits should be reduced in accordance with § 8-42-112(1)(b).
The ALJ found that the claimant communicated the five pound lifting restriction to the employer’s store manager, Mr. Pasco, who advised the claimant to work within her medical restrictions and told the claimant to request assistance to avoid exceeding her medical restrictions. However, the ALJ found that Mr. Pasco later assigned the claimant to work as a checker in the “fast lane” which required lifting over five pounds. Further, the ALJ found that due to a miscommunication between Mr. Pasco and Mr. Weitzel, who was in charge of the store on March 9, 1997, Mr. Weitzel did not know the claimant’s restrictions and chastised the claimant when she asked for assistance.
The ALJ further found that the reinjury occurred when the claimant needed to check a 12-pack of cans. The ALJ found that the claimant requested assistance but none was provided. In the meantime, the customer became irritated. Therefore, the ALJ found that the claimant acted reasonably in attempting to check the item by trying to use good body mechanics. However, the claimant strained her upper back, neck and shoulders.
Based upon these findings, the ALJ determined that there was no “safety rule” in effect at the time of the claimant’s injury. The ALJ also found that insofar as there was a safety rule, the employer violated the rule and encouraged the claimant to exceed her restrictions by assigning the claimant to a job which could not be performed within the restrictions. The ALJ also found that the claimant did not intentionally violate the rule. Instead, the ALJ found that the claimant violated the restrictions for the sole purpose of facilitating the accomplishment of her job duties as a checker in the “fast lane” at King Soopers. Consequently, the ALJ determined that the respondents failed to prove a “willful” violation of a safety rule.
On review the respondents contend that the record compelled the ALJ to find that the claimant willfully violated a safety rule. We disagree.
Assuming, arguendo, that there was a safety rule in effect at the time of the claimant’s injury which required her to adhere to her medical restrictions, we perceive no error in the ALJ’s finding that the respondents failed to prove a “willful” violation of the rule. As stated in Lori’s Family Dining, Inc., v. Industrial Claim Appeals Office, 907 P.2d 715, 718 (Colo.App. 1995):
“The most frequent ground for rejecting imposition of a penalty, whether it be for violation of a safety rule or willful misconduct, is the lack of enforcement of the rule or policy by an employer with knowledge of and acquiescence in its violation.”
The question of whether the employer permitted noncompliance with its own safety rule and acquiesced in the violation is one of fact for resolution by the ALJ, and his determination must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998; Lori’s Family Dining, Inc., v. Industrial Claim Appeals Office, supra. Under the substantial evidence standard we must defer to the ALJ’s resolution of conflicts in the evidence, his assessment of the sufficiency and probative weight of the evidence and reasonable inferences drawn from the record. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
Here, the testimony of the claimant and Mr. Weitzel amply supports the ALJ’s finding that the employer violated it’s own safety rule by requiring the claimant to work as a cashier in the “fast lane,” and by failing to provide assistance so that the claimant did not lift items which exceeded her medical restrictions. Further, the ALJ’s finding supports his determination that the respondents failed to prove a “willful” violation by the claimant. See Lori’s Family Dining, Inc., v. Industrial Claim Appeals Office, supra.
We also note that the finding of a “willful” violation may be negated where the evidence establishes that the claimant had some “plausible purpose” for violating the safety rule, as where the claimant sought to facilitate accomplishment of some job-related task. City of Las Animas v. Maupin, 804 P.2d 285 (Colo.App. 1990); Weiser v. Mountain Gravel Construction, W.C. No. 3-115-892 (December 24, 1996); Montellano v. Washington Street Auto Recycling, Inc., W.C. No. 4-252-594 4, 1995). There is substantial evidence in the record to support the ALJ’s finding that the claimant only violated her medical restrictions in an attempt to fulfill the duties required of her as a checker in the “fast lane.” Therefore, we agree with the ALJ that the evidence establishes the claimant had a “plausible purpose” for the violation.
Moreover, the absence of a “willful” violation is fatal to a request for the reduction of compensation under § 8-42-112(1)(b). Therefore, it is immaterial whether the ALJ erroneously found that there was no safety rule in effect at the time of the claimant’s injury, and we do not address that issue. Neither do we consider the respondents’ contention that the ALJ erroneously found that the violation was not the cause of the claimant’s injury and her subsequent disability.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 20, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed November 20, 1998
to the following parties:
Kaycene Hulbert, 2510 Baxter Pl., Fort Collins, CO 80526
King Soopers, Inc., Attn: Kristen McKeon, P.O. Box 5567, T.A., Denver, CO 80217-5567
John Taussig, III, Esq., 1919 — 14th Street, Ste. 805, Boulder, CO 80302-5327 (For the Claimant)
Pamela Musgrave, Esq., 777 E. Speer Blvd., Ste. 210, Denver, CO 80203 (For the Respondent)
BY: ______________________