W.C. No. 4-416-802Industrial Claim Appeals Office.
July 16, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which imposed a 50 percent penalty under § 8-42-112(1)(b), C.R.S. 2000 (injury resulting from willful failure to obey safety rule). We affirm.
The claimant suffered injuries to his right thumb and index finger when they were crushed between two orange urethane rollers that were part of a machine used to cut flat aluminum coils into strands. The respondents admitted liability for temporary disability benefits reduced by 50 percent under § 8-42-112(1)(b).
The ALJ found the injury occurred while the claimant was standing on the operator side of the machine adjusting the roll closure pressure to improve the tracking of the aluminum sheets through the machine. Immediately before the accident the claimant had his hand and arm resting on a blue bar, which was located in close proximity to the two orange rollers. As the claimant moved away from the machine his hand made contact with one of the rollers and was pulled down to where the roller fed the aluminum sheets through the machine. As a result the claimant suffered the crushing injury.
The ALJ also found the employer has a reasonable safety rule which prohibits employees from “placing their hands near a pinch point on any machinery when the machinery is in operation.” Further, the ALJ determined the injury was caused by the claimant’s willful failure to follow the safety rule. Therefore, the ALJ approved the respondents’ 50 percent reduction of disability benefits under § 8-42-112.
On review the claimant contends there is insufficient evidence in the record to support the ALJ’s finding that, in the context of the rule, the term “near” means “close enough to the pinch point to significantly increase the risk of injury.” The claimant also contends that the ALJ’s definition of the term “near” is too vague to be understood, followed and enforced. The ALJ rejected this argument and we perceive no basis to interfere with his determination.
Initially, we note that the claimant’s Designation of Record includes the “complete official file of the Division of Workers’ Compensation.” The record transmitted to us on appeal apparently does not include the Division of Workers’ Compensation file. However, our review is limited to the evidentiary record before the ALJ, and there is no evidence in the record which tends to suggest the claimant requested the ALJ to consider the entire Division of Workers’ Compensation file as part of the evidentiary record for the hearing. See City of Boulder v. Dinsmore, 902 P.2d 925 (Colo.App. 1995); Rules of Procedure, Part VIII(A)(7), 7 Code Colo. Reg. 1101-3 at 22. Consequently, we have not obtained or considered the Division of Workers’ Compensation file, but restricted our review to the record made at the hearing.
The applicable law is undisputed. Section 8-42-112(1)(b) provides for a fifty 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). 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, 165 Colo. 135, 437 P.2d 548 (1968).
The claimant admitted, and the ALJ found that the danger of placing one’s hands near the pinch point of the orange rollers was obvious. (Tr. p. 20). In particular, the design of the machine creates an inherent risk that a hand may be drawn between the rollers and compressed to the point of injury. Thus, the ALJ reasonably inferred that the safety rule prohibited employees from putting a hand near enough to the pinch point that the risk of injury was significantly increased.
Moreover, the claimant admitted he understood the safety rule, and understood the warning signs on the machine to be reminders that he should keep his hands away from the pinch point. (Tr. p. 12). He did not allege any confusion concerning how close to the pinch point he could safely place his hands. To the contrary, he admitted he knew the safety rule precluded him from putting his hand “near the two big pinch rollers.” (Tr. pp. 14, 17). Consequently, the claimant’s own testimony supports the ALJ’s determination that the employer’s safety rule was sufficiently definite as to be understood by the employees.
Next, the claimant contends there is no evidence to support the ALJ’s finding that placing an arm on the blue bar created a significant risk of coming into contact with the orange rollers. In support, the claimant relies on his testimony that the blue bar was 6 to 8 inches from the pinch point, and that he was never trained not to put his hand on the blue bar.
Respondents’ Exhibit B-15 is a photo of the machine which shows the location of the blue bar relative to the orange rollers. The claimant testified that the blue bar was “definitely close” to the pinch point. (Tr. p. 90). Based upon the photo and the claimant’s testimony, the ALJ reasonably inferred that the blue bar was sufficiently close to the orange rollers to create a significant risk of coming into contact with the orange rollers if the claimant rested his limb on the bar. (See
Summary Order dated November 5, 1999). In fact, this inference is consistent with the claimant’s testimony that immediately before the injury his right arm was resting on the blue bar “close enough to where all it took was a slip” to put his right hand in contact with the pinch point. (Tr. pp. 19, 91).
Finally, the claimant contends the ALJ ignored his testimony that the injury occurred while he was setting up the machine for the next shift as he was directed to do during a production meeting. Therefore, the claimant contends that the violation was not “willful” because he had a plausible purpose for violating the safety rule. Again we disagree.
As argued by the claimant, a violation of a safety rule need not be considered willful if the employee had some “plausible purpose to explain his violation a rule.” City of Las Animas v. Maupin, 804 P.2d 285
(Colo.App. 1995). Generally, an employee’s violation of a rule in an attempt to facilitate accomplishment of the employer’s business does not constitute willful misconduct. However, an employee’s violation of a rule for the purposes of making the job easier and speeding operations is not considered a “plausible purpose.” 2 Larson’s Workers’ Compensation Law, § 35.04.
The ALJ is presumed to have considered all the evidence. Cf. Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345 (1977) Wecker v. TBL Excavating, Inc., 908 P.2d 1186 (Colo.App. 1995) (ALJ presumed to be competent and unbiased). However, the ALJ is not required explicitly to discuss defenses or theories he rejected. Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966). The ALJ was not persuaded the claimant proved a plausible purpose for the safety rule violation, and we cannot say the record compels a contrary determination.
The injury occurred at the end of the workshift when the claimant was preparing the machine for the next worker. The claimant admitted he could have turned the machine off before adjusting the rollers as he had done on a previous occasion. (Tr. p. 22). Thus, the records contains evidence the claimant’s actions were not an attempt to facilitate the employer’s business as that term is defined by the plausible purpose doctrine.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 1, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
An action to modify or vacate this Order may be commenced 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. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 16, 2001 to the following parties:
Isaac Salamanca, 4109 Meadow Ave., Evans, CO 80620
Golden Aluminum Company, 1405 E. 14th St., Ft. Lupton, CO 80621
Travelers Indemnity Company of Illinois, Myra Jelinek, Travelers Property Casualty Company, P. O. Box 173762, Denver, CO 80217-3762
Britton Morrell, Esq., 710 11th Ave., #203, Greeley, CO 80631 (For Claimant)
Kevin L. Flynn, Esq., P. O. Box 5148, Denver, CO 80217-5148 (For Respondents)
BY: A. Pendroy