W.C. No. 4-467-883Industrial Claim Appeals Office.
September 18, 2001
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Gallegos (ALJ) which denied the respondent’s request for a fifty percent reduction of compensation under § 8-42-112(1)(b), C.R.S. 2001. We affirm.
Section 8-42-112(1)(b) provides that compensation for an industrial injury shall be reduced by fifty percent where the injury “results from the employee’s willful failure to obey any reasonable rule adopted by the employer for the safety of the employee.” To impose penalties under § 8-42-112(1)(b), the respondent must show that the claimant’s failure to obey the safety rule was the result of “willful” conduct. City of Las Animas v. Maupin, 804 P.2d 285 (Colo.App. 1990). The term “willful” means with “deliberate intent” as opposed to mere thoughtlessness, forgetfulness, or negligence. Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968); Johnson v. Denver Tramway Corp., 115 Colo. 214, 171 P.2d 410 (1946).
The question of whether the respondent proved willfulness is one of fact for determination by the ALJ. See Lori’s Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995). Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in record. Section 8-43-301(8), C.R.S. 2001.
Here, the claimant was injured while clearing some machinery on June 30, 2000. The employer has a “lock out/tag out” procedure which requires each employee working on cleaning or repairing equipment to lock out the machine, retain the key, and sign the tag. Under the procedure, the locks were to remain in place until the job is completed. The ALJ further found that the claimant was assigned a lock and tag, and had received extensive training regarding the lock out/tag out procedure. However, the ALJ found that in practice the procedure was used only when no else had locked out. If one employee locked out a machine, the other employees working with him trusted that the machine was locked and safe to work on.
The ALJ found that on June 30, the claimant’s supervisor, Michael Medrano (Medrano), was notified that a corn auger had broken down. After retrieving his lock from the break room, the ALJ found, Medrano properly locked out the auger and then went to get the claimant and a third worker to help him repair the auger. Neither the claimant nor the other worker used their own locks to lock out the auger. The ALJ found the claimant had worked with Medrano for approximately three years, and that he trusted Medrano and felt safe in taking direction from him. The ALJ also found the claimant does not speak English, and has a fifth grade education in Spanish, his native language.
Medrano shoveled corn from inside the auger for approximately ten minutes, before getting out and directing the claimant in Spanish to continue shoveling corn on a tractor. The ALJ found that Medrano did not direct the claimant to get into the auger, but the claimant got into the auger, knowing it was locked out, and shoveled corn for approximately three minutes. The claimant believed that Medrano left to get another shovel, but without knowing the claimant was in the auger, Medrano unlocked the auger and started it. The claimant was in the auger at the time, and his left lower extremity was pulled into the machinery and crushed.
The ALJ found the claimant knew he was required to lock and tag the auger, so that it was inoperable. However, the ALJ found, the claimant believed he was directed by Medrano to continue cleaning out the auger while Medrano went to get another shovel. The ALJ found the claimant did not apprehend that he needed to retrieve his own lock from the break room to lock out the system because he knew Medrano had locked out the machine.
Further, finding the testimony of the claimant credible, the ALJ found that the claimant either misunderstood Medrano’s instructions, or Medrano mispoke in trying to give the claimant instructions in Spanish. The ALJ also found the claimant plausibly believed getting into the auger was necessary to clean it out so it could be repaired, and that his actions were consistent with his and Medrano’s practice over the preceding three years. Finding that the claimant did not act with “conscious indifference” of the safety rule because he believed the auger had been locked out by Medrano, the ALJ determined the claimant did not form any intent to violate a safety rule. He therefore denied the respondent’s request for a fifty percent penalty.
On appeal, the respondent argues that the evidence compels a finding that the claimant violated the safety rule with deliberate intent. We perceive no reversible error.
Initially, we note the respondent disputes the ALJ’s finding that Medrano was the claimant’s “supervisor.” Rather, the claimant testified that he was supervised by another individual. Transcript 17, 31-32. However, it is implicit in the decision that Medrano was directing the repair of the corn auger on June 30, 2000, and we are not persuaded that any error in this finding by the ALJ was prejudicial.
Rather, the claimant’s testimony supports the ALJ’s findings concerning the past practice in relying on lock outs by other workers, and the claimant’s belief that it was acceptable to work in the auger because it had been locked by Medrano. Based on these circumstances, the ALJ could reasonably infer that the claimant did not deliberately intend to violate a safety rule. The respondent’s arguments do not persuade us that the evidence compels a finding to the contrary. Accordingly, we may not disturb the ALJ’s finding that the respondent failed to prove a “willful” violation as contemplated by § 8-42-112(1)(b).
IT IS THEREFORE ORDERED that the ALJ’s order dated February 24, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Robert M. Socolofsky
____________________________________ Bill Whitacre
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. 2001. 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 September 18, 2001 to the following parties:
Gilberto Villa, 206½ N. Main #21, Yuma, CO 80759
Gina Griego, Claims Adjuster, ConAgra Risk Management, P.O. Box G, Greeley, CO 80632
Robert A. Garcin, Esq., 903 N. Cleveland Av., #A, Loveland, CO 80537 (For Claimant)
Kyle L. Thacker, Esq. Richard W. Pruett, Esq., Ritsema Lyon, P.C., 999 18th St., #3100, Denver, CO 80202 (For Respondent)
BY: A. Pendroy