W.C. No. 4-214-025Industrial Claim Appeals Office.
November 13, 1995
FINAL ORDER
The respondent seeks of a final order of Administrative Law Judge Friend (ALJ) which denied a reduction in compensation based on the claimant’s alleged violation of a safety rule, and assessed additional compensation based on the respondent’s failure to carry insurance. We affirm.
I.
Concerning violation of the safety rule, the ALJ found that the claimant was injured when attempting to open a locked glass window at the respondent’s apartment complex. The ALJ also found that the respondent maintained a “key board” which permitted employees to obtain apartment keys prior to attempting entry to an apartment.
However, the ALJ concluded that the claimant did not violate a safety rule by attempting to open the window without obtaining a key. In this regard, the ALJ relied on the testimony of the claimant’s supervisor that the claimant was never instructed to refrain from opening windows by hand. The ALJ was also persuaded by the claimant’s testimony that he was not aware of any rule which prohibited opening the windows by hand.
On review, the respondent contends that there was a rule requiring the claimant to utilize the “key board,” and that it was “a safety rule” developed for the claimant’s own protection. The respondent also asserts that the claimant’s failure to obtain a key before attempting to open the window constitutes a “willful violation” of the rule. We reject the respondent’s arguments.
Section 8-42-112(1)(b), C.R.S. (1995 Cum. Supp.) provides for a fifty percent reduction in compensation where the claimant’s injury “results from the [claimant’s] willful failure to obey any reasonable rule adopted by the employer for the safety of the employee.” Clearly, the statute contemplates that the rule must have been promulgated to protect the claimant’s safety, and not for some other purpose. See Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968); Clayton Coal Co. v. DeSantis, 95 Colo. 332, 35 P.2d 492 (1934). Thus, we have previously held that a claimant’s violation of a rule designed to protect the employer’s property affords no basis for the imposition of a penalty under § 8-42-112(1)(b). Garcia v. Rio Grand County, W.C. No. 3-993-780, March 3, 1992.
Because the question of whether a particular rule is designed to protect the claimant is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). In applying this standard we are obliged to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Here, the record supports the ALJ’s determination that the claimant did not violate a “safety rule.” The claimant testified that the employer did not have any “safety rule” requiring use of a key prior to attempting to enter a window. Although the claimant was aware of the “key board” procedure, he testified that he did not understand this to be a “safety rule.” (Tr. pp. 13, 15-16).
Moreover, the testimony of the respondent’s witness does not compel a different result. Although the witness testified that the key board procedure was designed as a “safety rule,” she also admitted that the claimant was never instructed to avoid pushing on windows. (Tr. p. 37). Moreover, the testimony of the witness is subject to conflicting inferences concerning the purpose the key board procedure. A portion of the testimony suggests that the key board procedure was designed to protect the security and safety of the respondent’s property, not the safety of the respondent’s employees. (Tr. pp. 30-31).
Consequently, there was conflicting evidence concerning the existence of a safety rule. However, the ALJ’s determination that there was no safety rule is supported by the evidence, and the mere existence of conflicting testimony affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
II.
The respondent next contends that the ALJ erred in increasing the claimant’s compensation under § 8-43-408(1), C.R.S. (1995 Cum. Supp.). The respondent reasons that, because it was unable to purchase workers’ compensation insurance, application of the statute constitutes a denial of due process of law.
Our courts have held that imposition of a penalty is proper where the employer fails to carry insurance regardless of the employer’s “good faith.” Anderson v. Dutch Maid Bakeries, Inc., 106 Colo. 201, 102 P.2d 740
(1940); U.S. Fidelity Guaranty, Inc. v. Charles, 868 P.2d 1158
(Colo.App. 1994). We may not engraft an exception on the statute. Kraus v. Artcraft Sign Co., 710 P.2d 480 (Colo. 1985). Moreover, the constitutionality of the statute is a matter for determination by the judicial branch of government. We lack jurisdiction to consider such issues. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721
(1971).
IT IS THEREFORE ORDERED that the ALJ’s order, dated August 22, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed November 13, 1995 to the following parties:
Michael Watts, 818 S. Dexter St., #104, Denver, CO 80222
Attache, Inc., 450-A St., Ste. 405, San Diego, CA 92101
Richard T. Goold, Esq., 1017 S. Gaylord, Denver, CO 80209
(For the Claimant)
Carla Williams Sledge, Esq., 1215 Spruce St., Ste. 100, Boulder, CO 80302
(For the Respondent)
By: ____________________