W.C. No. 4-331-287Industrial Claim Appeals Office.
January 25, 1999
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which refused to reduce the claimant’s temporary disability benefits by 50 percent as provided in §8-42-112(1)(b), C.R.S. 1998 (safety rule violation). We affirm.
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.” 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).
The claimant is employed as a shingler, and the employer has a safety rule that requires all shinglers working on a slant roof to wear a harness, attached to a rope that is tied to the peak of the roof with a safety bracket. It is undisputed the claimant knew the rule.
The ALJ found that on March 3, 1997, the claimant was assigned to shingle a slant roof with Jason Smith (Smith). The employer provided the claimant with a rope and bracket but no nails to attach the bracket to the roof. Due to bad weather, the claimant did not work on March 4. On March 5, 1997, the claimant and Smith returned to the job site to finish the assignment. Before shingling the roof, they had to clear snow from a sixty foot section of the roof.
The ALJ found that the claimant and Smith had two forty foot ropes, but no sixty foot rope and no nails to tie off to the peak. Therefore, they tied a rope to each other in an attempt to use a belay system to clear the roof. However, the rope slipped causing the claimant to fall off the roof, hit the ground and sustain injuries. The ALJ found that the claimant’s actions violated the employer’s safety rule. However, the ALJ determined that the violation was not “willful.” Therefore, the ALJ refused to impose a fifty percent penalty.
On review, the respondents contend the ALJ erred in failing to find a “willful violation.” The respondents concede 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 the accomplishment of some job-related task. See 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 (October 4, 1995). However, the respondents argue that the evidence is insufficient to support the ALJ’s finding the claimant established a “plausible purpose” for his failure to comply with the safety rule. We disagree.
Professor Larson states that the”plausible purpose” exception applies to circumstances where the claimant’s judgment ignoring the safety rule is “might have been faulty or the conduct rash.” A. Larson, Workers’ Compensation Law, Ch. 6, § 33.40. The determination of whether the claimant “willfully” violated the safety rule is a factual determination for resolution by the ALJ. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998.
The ALJ found that the claimant felt pressured to finish the job because he was already behind, and the employer told him to hurry. (Conclusions of Law). Therefore, instead of delaying the job until he could get some nails or additional rope, the claimant attempted to use a belay system to prepare the roof for shingling. The ALJ’s findings are supported by substantial evidence in the record, and thus, must be upheld. (Tr. pp. 42, 57, 73, 76, 77).
Further, the claimant testified that he “didn’t think to ask for any” nails on March 3 because he “was not thinking.” He also stated that he was not aware of a method other than the failed belay system to sweep the roof. (Tr. pp. 80, 81). Thus, the record supports the ALJ’s finding that the claimant established a “plausible purpose” for the violation.
Moreover, the ALJ’s finding that the claimant did not intentionally violate the safety rule is a reasonable inference from the evidence that it was the employer’s duty to provide the necessary equipment to comply with the safety rule, and the employer did not ensure the claimant had nails to tie off. (Tr. pp. 35, 63). The respondents remaining arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 31, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed January 25, 1999
to the following parties:
Charles Rhodes, 3807 Halfturn Road, #328, Colorado Springs, CO 80917
Theresa Schenek, Empire Roofing/Human Resource Companies, 7600 E. Orchard Road, Englewood, CO 80111-2523
Tanya Avedovech, Liberty Mutual, PO Box 3539, Englewood, CO 80155-3539
Gordon J. Heuser, Esq., Heuser and Heuser, 625 N. Cascade, Suite 300, Colorado Springs, CO 80903 (For Claimant)
Raymond Melton, Esq., 1120 Lincoln Street, #1606, Denver, CO 80203 (For Respondents)
BY: ____________