W.C. No. 4-552-808.Industrial Claim Appeals Office.
October 29, 2003.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Jones (ALJ) which determined the claimant suffered compensable injuries during an assault by a co-worker. We reverse.
The claimant is a Bosnian Muslim who was employed as a machine operator. The ALJ found that on August 28, 2002, the claimant was assaulted by a co-worker following the escalation of a verbal exchange with the co-worker concerning the superiority of Muslims or Christians which expanded to include vulgar remarks about their mothers. (Finding of Fact 3). As a result of the assault the claimant suffered bruises, a possible hearing loss and, injuries to his face and neck.
The ALJ determined the claimant had no connection with the co-worker outside the workplace and would not have encountered the co-worker had he not worked for the respondent-employer. Expressly relying on Rendon v. United Airlines, 881 P.2d 482
(Colo.App. 1994), and Kitchens v. Dept. of Labor Employment, 29 Colo. App. 274, 486 P.2d 474 (1971), the ALJ further found that “but for” the employment the claimant would not have been assaulted. Consequently, the ALJ determined the injuries are compensable.
On review, the respondents contend the “but for” test is not applicable to determine the compensability of work-place assaults. Further, the respondents contend the ALJ’s reliance o Kitchens v. Dept. of Labor Employment, supra, is misplaced. Therefore, the respondents argue the ALJ’s findings do not support the award of benefits. We agree.
A compensable injury is one which arises out of and in the course of employment. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The “arising out of” test involves a question of whether there is a sufficient causal relationship between the employment and the injury.
As stated by the ALJ the law has identified three categories of causation for willful work-place assaults. The first category is assaults which are the result of a private dispute which the parties import to the work place. Velasquez v. Industrial Commission, 41 Colo. App. 201,581 P.2d 748 (1978) (claimants shot by a co-worker who believed that the claimants had made obscene calls to the co-worker’s spouse). A work place assault which results from a private or personal dispute imported to the workplace is not compensable. In Re Questions Submitted by U.S. Court of Appeals, 759 P.2d 17, 23 (Colo. 1988).
The second category is assaults that have an inherent connection to the employment because of “enforced contacts” which result from the duties of the job. In Re Questions Submitted by U.S. Court of Appeals, supra; Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996). In Rendon v. United Airlines, supra, the claimant was injured as a result of verbal and physical assaults by co-workers who believed the claimant to be a homosexual. The court upheld an ALJ’s determination that the injuries were compensable. The Rendon court reasoned that:
“In such circumstances, the cause of the event is the friction and strain created by the work environment that places claimant in a position to receive the impact of his co-workers’ personality and increases the likelihood of assault. It is because of the employment, and only because of the employment, that the claimant is subjected to his tormentor as an established fixture of the employment environment. (citation omitted) Furthermore, it is solely the obligations of the employment that compel the association of the employees, which would otherwise not come about, and it is this enforced and uneasy association that leads to the explosive finale. . . . In addition, the fact that a claimant or a fellow employee may overreact to an adverse condition of employment or that the overreaction may stem from some unusual quality of either employee’s personality does not alter the fact that the subject of that reaction had an inherent connection with employment.” Id at 485.
However, in Horodyskyj v. Karanian, 32 P.3d 470, 476 (Colo 2001), our Supreme Court rejected the court’s reasoning in Rendon
and concluded that analysis improperly eliminated the “causality requirement needed for an injury to arise out of the employment.” The Supreme Court held the Rendon test improperly framed the issue as “but for the bare existence of the employment” rather than “but for the conditions and obligations of the employment.”Ibid at 476. Therefore, the court held that evidence employees met through the employment “is not enough to cause offensive on-the-job conduct between them to fall within the `friction and strain’ of the job.” Ibid at 476.
The third category is assaults which result from a “neutral force”. See Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991); In Re Questions Submitted by U.S. Court of Appeals, supra. A “neutral force” is one that is neither particular to the claimant nor the employment. This type of assault has been analyzed under the “positional risk” or “but for” test and is applied to injuries which result from stray bullets, roving lunatics, drunks, assaults by mistake and completely unexplained attacks. In Re Questions Submitted by the U.S. Court of Appeals, 759 P.2d 17; Kitchens v. Dept. of Labor Employment, supra, (claimant suffered compensable injuries when he was shot by co-worker’s hunting rifle that discharged while the two were waiting for employer provided transportation to the work site). In Horodyskyj v. Karanian, supra, the court held that this category is limited to circumstances where the claimant is not a specific target and any person who happened to be in the position of the claimant at the time and place in question would have suffered the same injuries. Ibid at 477. As applied i Horodyskyj, the Supreme Court found that the alleged sexual harassment by Horodyskyj’s employer was specifically targeted at Horodyskyj and therefore, the alleged injuries were not caused by a neutral force.
Here the ALJ found the claimant’s injuries were precipitated by verbal taunting between the claimant and the co-worker concerning their religious differences. Because this finding is a plausible inference from the record, it must be upheld on review. Section 8-43-301(8), C.R.S. 2002; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Furthermore, this finding compels the conclusion the claimant’s injuries were the result of a personal religous dispute between the claimant and his co-workeres and not caused by a “neutral force” which would have resulted in injury to any employee then and there present. Therefore, the ALJ erroneously applied the “but for” analysis and erroneously relied on Kitchens v. Dept. of Labor Employment, supra, to find the claimant proved the requisite causal connection between the injuries and the employment.
Furthermore, we conclude the ALJ’s finding that the claimant had no connection with his assailant outside the workplace is legally insufficient to establish the requisite nexus between the injuries and the employment. Rather, Horodyskyj v. Karanian, supra, holds that the critical issue is whether the conditions and obligations of the employment caused the friction which resulted in the assault. We and the ALJ are bound by the holding in Horodyskyj. See C.A.R. 35(f).
The record contains highly conflicting evidence concerning the cause of the assault. Indeed there is some evidence the co-worker was hostile towards the claimant because of the claimant’s recent medical absence from work. (See Claimant’s Hearing Exhibit 1 — Denver Police Department Report August 28, 2002). However, the ALJ found the assault was precipitated by a discussion of religion and not the claimant’s use of sick leave. Cf. Dravo Corp. v. Industrial Commission, 40 Colo. App. 57, 569 P.2d 345
(1977) (presumption exists that ALJ considered and gave due weight to all evidence). Further, this finding compels the conclusion the assault was precipitated by a private dispute having no connection to conditions and obligations of the employment. Thus, the ALJ erroneously found the injuries are compensable.
IT IS THEREFORE ORDERED that the ALJ’s order dated February 3, 2003, is reversed and the claim for workers’ compensation is denied and dismissed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
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, 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 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 October 29, 2003 to the following parties:
Ferhat Varupa, 11531 E. 1st Ave., Aurora, CO 80010
David Rodriguez, AARLA/Bron Tapes, Inc., 4270 W. Richert, #101, Fresno, CA 93722
Clarendon National Insurance Co., c/o Alixe Virbick, Gallagher Bassett Services, Inc., P.O. Box 4068, Englewood, CO 80155
Ligita S. Bardulis, Esq., 1600 Pennsylvania St., Denver, CO 80203 (For Claimant)
James B. Fairbanks, Esq. and Matthew C. Hailey, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Hurtado