W.C. No. 4-438-030Industrial Claim Appeals Office.
May 13, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ), which dismissed the claim for workers’ compensation benefits. The claimant contends the ALJ’s findings of fact are improper because they contravene the doctrine of “law of the case.” Further, the claimant argues the ALJ’s finding that the injury was intentionally self- inflicted is contrary to the evidence, and contrary to our prior Orders of Remand. We affirm.
This matter is before us for the third time. Our prior Orders of Remand, dated March 8, 2001, and September 17, 2001, outline the pertinent facts. We incorporate our prior statements of the facts herein.
On December 6, 2001, the ALJ entered the order now under review. The ALJ found the claimant’s injury was “intentionally self-inflicted” within the meaning of § 8-41-301(1)(c), C.R.S. 2001, and, therefore dismissed the claim. Specifically, the ALJ found the claimant injured his right hand by “voluntarily and intentionally” punching a broken glass window. The ALJ determined the claimant’s “motivation” for striking the window was to retaliate against the employer for an earlier demotion, and for ordering the claimant to change jobs from “bagging out” to the less desirable job of demolition.
In reaching this conclusion, the ALJ discredited the claimant’s testimony that he accidentally injured his hand. However, that ALJ credited the claimant’s testimony to the extent the claimant testified he was “unhappy,” but not angry, that his supervisor ordered him to move from “bagging out” to demolition. (Tr. pp. 25, 34-35). The ALJ further found, based on the testimony of the claimant’s coworker, that the claimant did not instantaneously strike the window upon being directed to change jobs, but instead began walking to the new work station. The ALJ also concluded that “punching the broken window with a bare fist was almost certain to cause injury, and evidences more than merely a failure to realize the probable consequences of a foolish act.”
I.
On review, the claimant contends the ALJ erred when, after our first Order of Remand, she altered findings of fact concerning the claimant’s state of mind. Specifically, the claimant argues the ALJ contravened the principle of “law of the case” because the ALJ’s first order found the claimant was “angry” and “very angry” with the employer concerning the order to change job duties. However, in the ALJ’s two subsequent orders she found the claimant was “unhappy” rather than “angry.” We find no error.
The doctrine of “law of the case” is a discretionary rule of practice which directs that issues previously litigated and resolved are to be followed in the same case. Verzuh v. Rouse, 660 P.2d 1301 (Colo.App. 1982). The doctrine governs legal determinations, but not factual determinations. Mining Equipment Inc. v. Leadville Corp., 856 P.2d 81
(Colo.App. 1993); Martin v. Public Service Co., W.C. No. 4-005-640
(November 7, 1995).
Our first Order of Remand determined the ALJ’s original order, dated May 10, 2000, contained an erroneous finding of fact affecting the claimant’s credibility, and an erroneous finding that there was “no evidence” of any motivation for striking the window except “retaliation” against the employer. Consequently, we set aside the ALJ’s first order, directed the ALJ to reconsider the evidence and enter a new order on the issue of compensability, and remanded for further proceedings consistent with our order. In these circumstances, our order constituted a “general remand” which authorized the ALJ to reevaluate the evidence and enter new findings of fact and conclusions of law. See Musgrave v. Industrial Claim Appeals Office, 762 P.2d 686 (Colo.App. 1988). Because the ALJ was authorized to enter new findings of fact, she was not re-litigating a previously determined legal issue and the doctrine of law of the case was not implicated. Further, the ALJ acted within her authority to enter different findings after reconsidering the evidence.
II.
The claimant next contends the evidence does not support the ALJ’s finding that the injury was intentionally self-inflicted. The claimant argues the ALJ “speculated” concerning the reasons he struck the window, and that the only credible evidence establishes that action was the result of a grossly negligent or reckless act rather than an intentional act. We disagree.
The question of whether the claimant intentionally injured himself, or did so as a result of a grossly negligent or reckless act, was one of fact for determination by the ALJ. See Industrial Commission v. Peterson, 151 Colo. 289, 377 P.2d 542 (1962) (where respondents presented some evidence to overcome presumption against suicide, the question of whether the decedent intentionally killed himself or was the victim of an accident was one of fact for determination by the ALJ). Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence and credibility determinations. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). Further, to the extent the record is subject to conflicting inferences, we may not substitute our judgment for that of the ALJ concerning the logical inferences to be drawn. Industrial Commission v. Peterson, supra. Finally, if the testimony of an individual witness is inconsistent, the ALJ is free to resolve the inconsistency by crediting part or none of the testimony. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
The claimant first argues that to the extent the ALJ relied on the claimant’s testimony concerning his mental state, the testimony was “irrelevant.” The claimant reasons that because he denied punching the window, all of his testimony “pertained to conduct other than punching the window.” However, as pointed out above, the claimant did not deny that he was ordered to change jobs. Although the testimony was somewhat inconsistent concerning how this order affected the claimant’s mental state, the ALJ resolved the conflict and found that it made the claimant “unhappy,” but not “angry.” The testimony was certainly relevant since it indicated the claimant’s reaction to the order, and was properly credited by the ALJ because it represented a resolution of a conflict in the claimant’s testimony.
Neither do we agree with the claimant’s assertion that the evidence does not support the ALJ’s finding the claimant was in “control of his emotions” at the time he struck the window. As the ALJ found, there was evidence the claimant did not immediately strike the window but began walking to the new work site. Neither is there evidence the claimant was so enraged that he engaged in other conduct indicating a loss of emotional control. Further, the finding the claimant was “unhappy” rather than “angry” permits an inference the claimant acted deliberately. Although the evidence is subject to conflicting inferences concerning the claimant’s state of mind, we cannot say the ALJ erred as a matter of law in concluding the claimant injured himself intentionally.
Finally, we disagree with the claimant’s contention the ALJ “speculated” by concluding the claimant was motivated by a desire to “retaliate” against the employer. There was evidence from which the ALJ could infer the claimant was motivated by dissatisfaction with the recent demotion and the order to perform undesirable duties. Although the claimant argues the ALJ’s conclusion is unreasonable because he would only be “hurting himself” by striking the window, there is evidence to the contrary. Indeed, the claimant testified the job “needed to be done, and there shouldn’t have been room for an accident.” One of the employer’s witnesses testified the motivation for ordering the claimant to change jobs was because the “work was going slow.” The ALJ could infer from this evidence the claimant was fully aware that an injury would slow progress on the job and, in that sense, damage the employer. Because the ALJ drew a plausible inference from the record, we may not interfere with the finding.
III.
The claimant’s final argument is the ALJ’s order fails to comply with our Order of Remand dated September 17, 2001. In that order, we held injuries sustained by a claimant when striking his hand against a wall or other similar actions are not “self-inflicted” injuries if they result from impulsive conduct stemming from anger over a work-related issue. (Order of Remand, September 17, p. 2) . The claimant reasons Finding of Fact 12, contained in the ALJ’s December 6 order, contravenes the Order of Remand because the ALJ “considered the very act of punching the window as precluding a finding of compensability.” We disagree.
We adhere to the principles of law set forth in our prior orders. However, we do not agree that Finding of Fact 12 contravenes those principles. As we understand the ALJ’s order, she determined the specific act in question, striking the window, made it more likely the claimant’s intention was to injure himself than if the claimant had engaged in some other behavior, such as striking a wall. This constitutes a recognition that some behaviors cause a greater risk of injury than other behaviors, and the more obvious the risk the greater is the probability that the person intentionally subjected himself to the resulting injury.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 6, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
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 May 13, 2002 to the following parties:
Miguel Leon, 3700 Farabaugh Lane, Pueblo, CO 81005
Koncilja Koncilja, P.C., Attn: Lawrence D. Saunders, Esq., 125 West “B” Street, Pueblo, CO 81003 (For the Claimant)
Environmental Abatement Services, 530 E., Colorado Ave., Colorado Springs, CO 80903-3604
GAB Robins, North America, Inc., Attn: Corrie Sapien, P.O. Box 370750, Denver, CO 80237-0750
Credit General Insurance Co., 3201 Enterprise Parkway, Beachwood, OH 44122
Floyd Youngblood, Esq., 4465 Kipling, #102, Wheat Ridge, CO 80033 (For Respondents)
BY: A. Hurtado