W.C. No. 4-507-117Industrial Claim Appeals Office.
March 31, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which determined the claimant violated a safety rule and imposed a 50 percent reduction in compensation pursuant to section 8-42-112(1)(b), C.R.S. 2002. The claimant contends the ALJ’s application of the statute was erroneous as a matter of fact and law. We affirm.
The claimant filed a timely petition to review, but no brief in support. The petition to review alleges the ALJ erred in concluding that the claimant, an employee of a temporary services agency, was not excused from violating a safety rule against use of ladders over four feet in length. The claimant asserts the violation was excused because the contractor at the job site (with whom the claimant’s employer had contracted for the claimant’s services) requested the claimant to use a twenty-five foot ladder, and the claimant fell from the ladder. We perceive no error.
Section 8-42-112(1)(b) requires the imposition of penalties for the willful failure to obey any reasonable safety rule. In order to demonstrate a “willful” violation, the respondents must prove the claimant acted with deliberate intent. However, it is not required that the claimant had the rule in mind and determined to break it. Rather, it is sufficient to prove the claimant knew of the rule and deliberately performed the forbidden conduct. Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968); Stockdale v. Industrial Commission, 76 Colo. 494, 232 P. 669 (1925). A finding of willfulness may be negated by proof that the violation occurred in an effort to facilitate the accomplishment of a task in furtherance of the employer’s business. City of Las Animas v. Maupin, 804 P.2d 285 (Colo.App. 1990).
The question of whether the employer proved willfulness is one of fact for determination by the ALJ. City of Las Animas v. Maupin, supra. Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to view the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the testimony of the employer’s witnesses provides substantial evidence in support of the ALJ’s finding the claimant was made aware of the safety rule and deliberately performed the prohibited conduct. The fact the claimant testified to the contrary affords no basis for relief on appeal.
Neither are we persuaded that the finding of willfulness was negated because the contractor for whom the claimant was performing the temporary services requested the claimant to climb the ladder. There was substantial evidence the claimant admitted to the employer after the accident that he knew he violated the rule when he climbed the ladder. Further, there was substantial evidence that the claimant’s motivation for climbing the ladder was not to facilitate his employer’s business by performing the prohibited conduct, but to curry favor with the contractor because he personally liked the job, his co-worker, and the contractor. (Tr. P. 37). Indeed, the ALJ inferred the claimant acted in hopes of obtaining future employment with the contractor. (Conclusion of Law 2). This constitutes a plausible interpretation of the evidence.
The claimant’s remaining arguments do not persuade us there is any error in the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 17, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,CO 80203, by filing a petition for review with the Court, within twenty(20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party mustserve a copy of the petition upon all other parties, including theIndustrial Claim Appeals Office, which may be served by mail at 1515Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed March 31, 2003 to the following parties:
Martin Ruiz, P. O. Box 8301, Avon, CO 81620
Eagle Valley Temps, Inc., P. O. Box 1469, Avon, CO 81620-1469
Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Donald J. Kaufman, Esq., 401 23rd St., #302, Glenwood Springs, CO 81601 (For Claimant)
Elizabeth Koch, Esq., 101 N. Tejon, #410, Colorado Springs, CO 80903
By: A. Hurtado