W.C. No. 4-387-789Industrial Claim Appeals Office.
October 21, 1999
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which awarded the claimant temporary total disability and medical benefits as a result of an assault and battery in the workplace. The respondents contend the evidence establishes the assault was the result of a purely private dispute, and the ALJ erred in awarding benefits merely because the assault occurred in the workplace. We conclude the ALJ’s findings of fact are insufficient to support appellate review and remand for entry of a new order.
The claimant supervised co-employees Clarence Robinson (Robinson) and Cathy Sandoval (Sandoval). The ALJ credited Sandoval’s testimony that the claimant sexually harassed her on at least two occasions prior to June 30, 1998. The harassment occurred in the work environment, and Sandoval had only worked for the employer since June 11, 1998. (Tr. pp. 69-70). Unbeknownst to the claimant, Robinson was Sandoval’s boyfriend.
On June 30 the claimant drove to a warehouse where Robinson and Sandoval were working. Pursuant to instructions from his superior, the claimant told Robinson, in the presence of Sandoval, to “call the temporary agency which had supplied [Robinson] to the employer” and to “call his wife.” The claimant also spilled water on Sandoval’s back.
Following these incidents Robinson and Sandoval left the room, as did the claimant. Approximately ten minutes later Robinson approached the claimant in the warehouse office and immediately began battering the claimant. Robinson yelled at the claimant to “keep his hands off my girl.”
The ALJ concluded the claimant’s injuries were compensable because they occurred in the “course and scope of employment” and arose out of the employment. In support, the ALJ found there was absolutely no relationship between any of the parties outside the employment context. The ALJ also stated that, even though Robinson’s motivation for attacking the claimant “may have been due to his personal relationship with Ms. Sandoval,” the dispute between Robinson and the claimant arose entirely out of the “friction of these three individuals working together and that it did not arise out of a personal dispute which was imported into the workplace.”
On review, the respondents contend the undisputed evidence establishes that Robinson’s motivation for assaulting the claimant was purely personal. Consequently, the respondents argue the claimant’s injuries do not have a sufficient causal connection to the employment to have arisen out of the employment. The respondents further argue that, contrary to the ALJ’s conclusion, the compensability of an assault is not established merely because the combatants’ relationship developed in the workplace and because no dispute was “imported” from a personal relationship outside the employment. Because the ALJ may have misapplied the law, and because the findings of fact are insufficient to support appellate review, we remand for entry of a new order. Section 8-43-301(8), C.R.S. 1999.
The claimant’s right to compensation is dependent on proof the injury arose out of and in the course of employment. Section 8-43-301(1)(b) and (c), C.R.S. 1999. The “course of employment” requirement generally refers to the time, place, and circumstances under which the injury occurred. The “arising out of” employment requirement concerns the cause of the injury and requires that it have “its origin in an employee’s work-related functions and be sufficiently related thereto as to be considered part of the employee’s service to the employer in connection with the contract of employment.” Popovich v. Irlando, 811 P.2d 379 (Colo. 1991).
In re Question Submitted by the United States Court of Appeals, 759 P.2d 17 (Colo. 1988), is the leading Colorado case concerning the compensability of workplace assaults committed by one employee against a co-employee. In that case, the court held that assaults may be divided into three categories. The first category of assaults results from “enforced contacts” in the workplace. Such assaults have an “inherent connection with the employment” and may originate in disputes involving the performance of work, the possession of work tools, delivery of a paycheck, termination from employment, or mediating disputes between co-employees. The court also stated that even if the subject of the dispute is unrelated to work, the assault may yet be compensable “if work brought the employees together and created the relations and conditions resulting in the dispute.” Id., n. 8, at 23. The second class of assaults involves purely personal disputes imported to the workplace from the claimant’s domestic or private life. The third class of assaults results from a “neutral” force which is not distinctly associated with the employment or the result of some motivation personally associated with the claimant. Examples include attacks by a lunatic, drunk, or other irresponsible person. The first and third classes of assaults are compensable, while the second is not because there is no causal connection between the employment and the injury. Id.
at 23-24.
We agree with the respondents that where an assault on a co-employee is motivated by a purely private or personal concern, the mere fact that the employment created the relationship between the parties is insufficient to render the injuries compensable. In discussing “Private Quarrels Engendered During Employment,” Professor Larson states that the essence of the “enforced contacts” test is whether the injury would not have occurred “but for the conditions and obligations of the employment.” The test is not whether the injury was a product of the “bare existence of the employment.” 1 Larson’s Workers’ Compensation Law, § 8.02 [2]. Hence, in Velasquez v. Industrial Commission, 41 Colo. App. 201, 581 P.2d 748 (1978), the court held that a workplace shooting motivated by a private dispute was not compensable in the absence of evidence that the private dispute was “exacerbated by the employment.” See also Bryant v. Penrose Hospital, W.C. No. 4-015-790 (January 25, 1993) (assault was not compensable where it resulted from a purely private dispute which coincidentally arose in the workplace).
Here, the ALJ may have incorrectly applied these principles of law. The ALJ appears to have determined the assault on the claimant is compensable merely because his association with Robinson and Sandoval developed in the workplace, and because the claimant did not associate with them outside of employment. The ALJ found that Robinson’s motivation for attacking the claimant “may have been due to his personal relationship with Sandoval,” but then concludes that the assault arose out of the “friction” inherent in the employment relationship. However, the ALJ made no findings of fact concerning the “conditions and obligations of employment” which created the “friction.” Therefore, we are unable to ascertain the basis of the ALJ’s conclusion that the assault “arose out of” the claimant’s employment.
However, the record does contain evidence which, if credited by the ALJ, could support an inference that the conditions and obligations of the claimant’s employment aggravated or exacerbated Robinson’s private animosity towards the claimant. Sandoval testified that she did not report the claimant’s sexual harassment prior to June 30 because she was afraid of losing her job. Sandoval also stated that after the incident in which the claimant poured water on her Robinson was angry because Sandoval had not reported the claimant’s sexual harassment to higher authorities. (Tr. pp. 76, 78, 80).
Under these circumstances, the ALJ could infer that at least a portion of Robinson’s anger towards the claimant resulted from the claimant’s exploitation of his supervisory authority and the consequent intimidation of Sandoval. If the ALJ were to adopt this inference as a finding of fact it would support the conclusion that the conditions and obligations of the claimant’s employment exacerbated the private animosity which Robinson felt towards the claimant. The mere fact that the claimant’s treatment of Sandoval may have been improper and outside the scope of his authority would not alter the fact that Robinson’s motivation for assaulting the claimant was to some degree a product of the enforced contacts and conditions created by the employment relationship. See Banks v. Industrial Claim Appeals Office, 794 P.2d 1062 (Colo.App. 1990) (if assault stems from a dispute having an inherent connection with the conditions of employment the claimant is entitled to receive benefits regardless of her fault in initiating the fight).
The matter must be remanded to the ALJ for entry of a new order containing findings of fact resolving the question of whether Robinson’s assault on the claimant was, to some extent, motivated by factors involving the conditions and obligations of the claimant’s employment. If so, benefits may be awarded. If not, the ALJ shall deny benefits. We need not reach the other issue raised in the respondents’ brief because we now understand them to have conceded that the claimant sustained the injuries “in the course of” his employment.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 21, 1998, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
Copies of this decision were mailed October 21, 1999 to the following parties:
Gilberto Padilla, 3359 S. Monaco Pkwy., #D, Denver, CO 80222
Telecheck Services, Inc., 3025 S. Parker Rd., Aurora, CO 80014-2911
Travelers Indemnity Company of Illinois, Attn: Laura Denny, P.O. Box 173762, Denver, CO 80217-3762
Barrie G. Sullivan, II, Esq., 1325 S. Colorado Blvd., #405, Denver, CO 80222 (For Claimant)
Lawrence D. Blackman, Esq., Tower 3, #600, 1515 Arapahoe St., Denver, CO 80202 (For Respondents)
BY: A. Pendroy