W.C. No. 4-312-969Industrial Claim Appeals Office.
September 18, 1997
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Gandy (ALJ) which denied and dismissed the claim for workers’ compensation benefits. We set aside the order and remand the matter for additional findings.
In general, an injury is compensable if it occurs while the claimant is performing a service arising out of and in the course of his employment. Section 8-41-301(1)(b), C.R.S. 1997. An injury “arises out of” the employment when it is sufficiently related to the conditions and circumstances under which the employee usually performs his or her job functions to be considered part of the service provided to the employer. Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996).
The claimant sought workers’ compensation benefits in connection with injuries he sustained on October 10, 1996. The claim was consolidated for hearing with Olivas-Ruiz v. Norris Concrete Contractors L.L.C., W.C. No. 4-312-969, involving similar injuries to the claimant’s co-worker Jesus Olivas-Ruiz (Ruiz).
Based upon the evidence presented on January 6, 1997, the ALJ found that the injuries to the claimant and Ruiz did not arise out of their employment for Norris Concrete Contractors L.L.C. (Norris Concrete). The ALJ’s pertinent findings may be summarized as follows. Norris Concrete is a subcontractor who was hired to perform concrete work on the construction of a new house. On October 10, 1996, employees of Norris Concrete, including the claimant and Ruiz, set concrete for the new house. While they waited for the concrete to dry, Ruiz agreed to assist another subcontractor on the job site lift a wall onto the second floor of the house. As the claimant and Ruiz helped to lift the wall, it collapsed and fell on them, causing injuries.
Ruiz testified that he agreed to assist the other subcontractor because the employer’s owner, Darrell Norris (Norris), told him that the other subcontractor was in charge of the job site. He also stated that he believed his employment would be jeopardized if he and the other Norris Concrete employees refused to help the other subcontractor.
The ALJ found Ruiz’s belief that the other subcontractor was in charge of the job site unreasonable. The ALJ also credited evidence that the employer’s business was limited to concrete construction; that there was no relationship between Norris Concrete and the other subcontractor; that erecting walls was not part of the claimant’s job duties; that the claimant was only hired and paid for concrete work; that Norris never told the claimant that the other subcontractor was in charge of the job site; and that there was no benefit to Norris Concrete from the claimant assisting other subcontractors.
Based upon these findings the ALJ determined that the claimant’s action in lifting walls was not “interrelated” or “incidental” to the claimant’s concrete and cement work in his employment. Therefore, the ALJ concluded that the claimant failed to sustain his burden to prove that his injuries arose out of his employment.
On appeal, the claimant contends, inter alia, that Ruiz ordered him to assist the subcontractor. Accordingly, he argues that his injuries arose out of a direct order from his immediate supervisor.
The respondents’ arguments notwithstanding, the record contains some evidence which, if credited, could support a finding that the claimant was injured while responding to a direct order from his immediate supervisor. Norris testified that he put Ruiz in charge of the job site on the day of the claimant’s injury. (Tr. p. 23). Furthermore, Ruiz testified that he told “the rest of the guys” on the crew to assist the other subcontractor, and when they did the wall fell on five of them, including the claimant. (Tr. p. 8-9).
The ALJ did not make any specific findings of fact concerning the credibility or probative weight of this evidence. Furthermore, we agree with the claimant that injuries sustained while an employee is attempting to comply with a direct order from the employer are compensable. Therefore, we conclude that the ALJ’s findings of fact are insufficient to determine whether he erred in concluding that the claimant’s injuries did not arise out of his employment. Under these circumstances, it is necessary to remand the matter to the ALJ for additional findings concerning the claimant’s contention that he was acting in response to the directive of a supervisor when he was injured, and for entry of a new order. See § 8-43-301(8), C.R.S. 1997.
In view of our remand, it is premature to consider the claimant’s remaining arguments.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 4, 1997, is set aside and the matter is remanded to the ALJ for additional findings and entry of a new order, consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill Whitacre
Copies of this decision were mailed September 18, 1997 to the following parties:
Alfonso Rodriguez, c/o Joaquin Rodriguez, P.O. Box 32, Hudson, CO 80642
Darrell Norris, Norris Concrete Contractors, L.L.C., 190 S. 36th St., Boulder, CO 80302
Colorado Compensation Insurance Authority, Attn: Laurie A. Schroder, Esq. (Interagency Mail)
Michael P. Dominick, Esq., 250 Arapahoe Ave., #301, Boulder, CO 80302 (For the Claimant)
Joel M. Pollack, Esq., 999 18th St., #3100, Denver, CO 80202 (For the Respondents)
BY: _______________________________