W.C. No. 4-241-772Industrial Claim Appeals Office.
March 5, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Rumler (ALJ), which determined that the claimant suffered a compensable injury. We affirm.
The ALJ found that the claimant was injured in an automobile accident on February 10, 1995. At that time, the claimant was driving the company vehicle from Grand Junction to Denver.
Before beginning the drive, the claimant called her employer, Ms. Thompson. The claimant heard television reports that bad weather had closed the road between Grand Junction and Denver. The claimant testified that, upon conveying this information to Ms. Thompson, they reached a “mutual agreement” that the claimant should not drive to Denver. Later, however, the weather improved and the claimant decided to drive.
The ALJ recognized Thompson’s testimony that she told the claimant “I don’t want you to drive to Denver,” and “I really want you to stay [in Grand Junction].” However, the ALJ found that the claimant “did not take” Thompson’s statements as an order requiring the claimant to remain in Grand Junction if the weather conditions improved.
Under these circumstances, the ALJ rejected the respondents’ argument that the claimant violated an employer order which removed the drive to Denver from the “sphere” of the claimant’s employment. Specifically, the ALJ stated that Thompson’s remarks did not constitute an “order or directive,” but simply a “mutual agreement” between the claimant and Ms. Thompson. Moreover, the ALJ found that the claimant’s conduct did not violate the “mutual agreement” because the weather conditions had improved by the time the claimant left Grand Junction.
On review, the respondents contend that the ALJ erred in determining that the claimant was within the scope of employment at the time she was driving to Denver. In support of this argument, the respondents rely on Bill Lawley Ford v. Miller, 672 P.2d 1031 (Colo.App. 1983). The respondents also assert that the record lacks substantial evidence to support the ALJ’s finding that the claimant’s decision to drive did not violate the “mutual agreement.” We reject these arguments.
As a general rule, an employer has a right to issue directives concerning what an employee may do, and when the employee may do it. Directives of this type regulate the “sphere” of employment, and if an employee sustains an injury while violating such a directive, the injury is not compensable. Conversely, violation of directives relating only to the employee’s conduct within the sphere of employment do not remove injuries from the realm of compensability. Bill Lawley Ford v. Miller, supra.
In order for an employer directive to remove conduct from the sphere of employment, it is necessary that the directive be clear and evidence an intent to remove conduct from the scope of employment. Butland v. Industrial Claim Appeals Office, 754 P.2d 422 (Colo.App. 1988). Factors relevant to evaluating the effect of a directive include the employer’s reason for imposing the directive, the circumstances under which it was given, when it was given, what the employer intended to prohibit, and in what manner the claimant interpreted the order. See Ramsdell v. Horn, 781 P.2d 150 (Colo.App. 1989).
Moreover, in evaluating the ALJ’s order we must accept her findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). In this regard, we must defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations and the plausible inferences which she drew from the evidence. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
The respondents’ argument notwithstanding, the record supports the ALJ’s determination that Ms. Thompson did not give an order or directive sufficient to remove the claimant’s conduct from the scope of employment. The evidence, when viewed in a light most favorable to the claimant, supports the ALJ’s conclusion that the claimant and Thompson “mutually agreed” that the claimant should not return to Denver, but that this agreement was predicated on a belief that the roads were dangerous or impassable. Neither the ALJ nor the claimant was required to interpret the agreement as prohibiting a return to Denver if conditions improved.
It is true that the evidence in the record might have supported contrary findings and conclusions. However, we decline the respondents’ invitation to substitute our judgment for that of the ALJ concerning the weight and credibility of the testimony. The fact that Thompson’s testimony, taken in isolation, might have supported a contrary result is immaterial on review. May D F v. Industrial Claim Appeals Office, 752 P.2d 589
(Colo.App. 1988).
IT IS THEREFORE ORDERED that the ALJ’s order, dated August 7, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed March 5, 1996 to the following parties:
Donna Nielsen, 1801 S. Welch Circle, Lakewood, CO 80228
Cynthia S. Thompson, PXC Denver, LLC, 4848 S. Union Ct., Morrison, CO 80465
C. Boyd, Esq., Colorado Compensation Insurance Authority — Interagency Mail
James E. Elliott, Esq. and Mark D. Elliott, Esq., 7884 Ralston Rd., Arvada, CO 80002-2434
(For Claimant)
Douglas A. Thomas, Esq. and Douglas P. Ruegsegger, Esq., 1700 Broadway, #1700, Denver, CO 80290-1701
(For Respondents)
By: _____