W.C. No. 4-698-275.Industrial Claim Appeals Office.
June 6, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) dated January 17, 2008 that ordered the claimant’s benefits to be reduced by 50 percent for willful violation of a safety rule. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant worked as a pawnshop clerk and assistant manager. A woman telephoned the pawnshop advising that her home had been burgled that morning and to be on the lookout for stolen jewelry and a laptop computer. A customer first attempted to sell jewelry at the pawnshop and later brought in a laptop computer. An employee tried to stall the customer while the police were contacted. The customer became suspicious of the delay, grabbed the computer and ran out the front door. The claimant followed to get the license plate number of the customer. The claimant went over the hood of the customer’s car and landed at the driver’s side door. The claimant reached in and grabbed the computer but his arm became entangled in the seatbelt strap. The customer dragged the claimant through the parking lot until the claimant was able to detach from the car. The customer’s vehicle struck the claimant as the customer attempted to escape. The claimant was injured during these events.
The ALJ determined that the respondents had proven that the claimant’s injuries were proximately caused by his willful violation of a published, and oral, safety policy of not exposing oneself to a dangerous situation. The ALJ concluded that the claimant by reaching into the suspected thief s vehicle to try to retrieve the computer and then being caught and dragged by the suspect’s car constituted a willful violation of a safety policy.
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I.
On appeal, the claimant first contends that the ALJ erred in finding there was a violation of a safety rule because a safety rule mandating “avoidance of a dangerous situation” is not sufficiently definite to permit an employee to know what actions are in violation of the rule. We are not persuaded that the ALJ erred.
Section 8-42-112(1), C.R.S. 2007, provides for a 50 percent reduction in benefits if the employee is injured due to a willful violation of a safety rule. The term “willful” connotes deliberate intent, but mere carelessness, negligence, forgetfulness, remissness or oversight does not satisfy the statutory standard. Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968). The respondents bore the burden of proof to establish that the claimant’s conduct was willful Lori’s Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715
(Colo.App. 1995). The question of whether the respondents carried the burden of proof was one of fact for determination by the ALJ. City of Las Animas v. Maupin, 804 P.2d 285 (Colo.App. 1990). Thus, we are required to uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. In applying this standard, we must defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
The claimant citing, Salamanca v. Golden Aluminum Company, W. C. No. 4-416-802, (July 16, 2001), aff’d, Salamanca v. Industrial Claim Appeals Office, Case No. 01CA1349, (Colo.App. Sept. 26, 2002) (not selected for publication), argues that the safety rule must be sufficiently definite as to be understood by the employees. In Salamanca, the safety rule prohibited employees from “placing their hands near a pinch point on any machinery.” The claimant was injured when his hand was pulled by a roller into the machine. The panel upheld the ALJ’s determination that the employer’s safety rule was sufficiently definite as to be understood by the employees. In Salamanca the court of appeals, in upholding the panel, disagreed with the claimant that the term “near” was vague. The court of appeals noted that a term is considered vague only if persons of common intelligence must necessarily guess as to its meaning and differ as to its application. The court of appeals determined that there was adequate support for the ALJ’s determination that the employer’s safety rule was sufficiently definite as to be understood by the employees.
Here, the claimant notes that the ALJ found that “Employer did not have a clearly defined safety rule regarding how to handle stolen property, other than the avoidance of a dangerous situation.” Second Corrected Full Findings of Fact, Conclusions of Law and Order (Order) at 5, ¶ 19. The claimant argues that since the policy requires the exercise of the employee’s judgment as to what was dangerous and was not dangerous the rule is
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not sufficiently definite to notify an employee as to what actions were permissible and what actions were not permissible.
However, the ALJ also found with record support that the Vice President of the employer testified that the claimant had received a copy of the employee handbook. Tr. at 130. The employee handbook provided that employees were never to incite a dangerous situation, never put oneself or fellow employees at risk, never attempt to confront, subdue, or apprehend any person in the act of a crime and never attempt to confiscate property suspected of being stolen. Exhibit N at 34. The Vice President had numerous discussions with the claimant on how to handle volatile, possibly criminal circumstances. Tr. 116-19. The Vice President cautioned the claimant not to act the hero and to avoid escalating dangerous situations. Tr. at 120. The ALJ found that the employer had published precise rules by which employees were to safely conduct business. Order at 15, ¶ j.
Moreover, the ALJ found that the day after the incident the claimant admitted his actions had been “boneheaded.” Tr. at 126. The ALJ found the Vice President testified that the company’s policy concerning confiscation of stolen property was clearly defined in writing in the employee handbook, which specifically forbids an employee from confiscating stolen property. Order at 5, ¶ 19. Here, the claimant followed a suspected thief out of the pawnshop, went over the hood of the suspect thief s car and then tried to grab a computer out of the suspected thief s car. We are not persuaded that the ALJ was compelled as a matter of law to find that the safety rule here required the avoidance of a dangerous situation was not sufficiently definite to notify the employee that his actions were not permissible. This is particularly true in light of the claimant’s admission that his actions were boneheaded.
II.
The claimant next contends that the ALJ did not make sufficient findings of fact to permit appellate review as to whether the claimant willfully violated the safety rule. The claimant, citing Johnson v. Denver Tramway Corp. 171 P.2d 410(Colo. 1946) and City of Las Animas v. Maupin, supra, argues that a willful violation is one which results from deliberate intent, and not mere negligence, inadvertence, or forgetfulness. The claimant seeks a remand to the ALJ for additional findings as to whether the claimant knew that reaching into the car would place him in a dangerous situation.
The claimant concedes that his actions in reaching into the car were willful. However, the claimant argues that the ALJ failed to determine whether the claimant willfully violated the safety rule by knowing that his actions would place him in a dangerous situation, but did so anyway.
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Section 8-42-112(1)(b) provides for a 50 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.” We do not question that a “willful violation is one which results from deliberate intent, and not mere negligence, inadvertence, or forgetfulness.” Johnson v. Denver Tramway Corp., supra. However, the respondents are not required to present direct evidence concerning the claimant’s state of mind or prove the claimant had the rule “in mind” when he did the prohibited act. Rather, a “willful” violation may be inferred from evidence the claimant knew the safety rule and did the prohibited act. Bennett Properties Co. v. Industrial Commission, supra.
In our opinion, there is substantial evidence and reasonable inferences drawn from this evidence that would support a finding that the claimant knew of the safety rule and did the prohibited act. Here, the ALJ found with record support that the employer had published rules by which employees were to conduct business safely and that the claimant received it. Exhibit N at 34; Tr. at 130. The Vice President credibly testified that on many occasions he had discussed with the claimant the appropriate method of handling potentially dangerous situations. Tr. at 115-19. The Vice President stated he emphasized to the claimant “don’t be a hero.” Tr. at 120. The ALJ concluded that the claimant’s actions in attempting to retrieve the computer from the suspected thief s vehicle constituted a violation of the company’s policies and rule. ALJ found that reaching inside the car for the laptop placed the claimant in a dangerous situation, which violated the safety rule. Accordingly, the ALJ ordered that his indemnity benefits would be reduced by half. We perceive no reversible error in the ALJ’s finding claimant’s violation was willful.
IT IS THEREFORE ORDERED that the ALJ’s order issued January 17, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
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MICHAEL POMMERENING, GOLDEN, CO, (Claimant).
ADVANTAGE PAWN, INC., Attn: KURT BRINKERHOFF, LAKEWOOD, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ, DENVER, CO, (Insurer).
LAW OFFICE OF STEVEN J PICARDI, PC, Attn: STEVEN J PICARDI, ESQ., TUFTS AVE, DENVER, CO, (For Claimant).
RITSEMA LYON, PC, Attn: MARCIA BAUDER GARCIA, DENVER, CO, 80202 (For Respondents).
PINNACOL ASSURANCE, Attn: KATHY REDMOND, DENVER, CO, 80246 (Other Party).
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