W.C. No. 4-468-159Industrial Claim Appeals Office.
June 19, 2002.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Snider (ALJ) which determined the claimant suffered a compensable injury and awarded temporary total disability benefits commencing March 21, 2000, and continuing. The respondents argue the ALJ made erroneous findings of fact with respect to the “horseplay” doctrine. The respondents further contend the ALJ erred in concluding the claimant’s post-separation wage loss was caused by the injury because the claimant announced his intention to retire before the injury. We affirm.
The ALJ’s findings may be summarized as follows. The employer was in the business of selling vehicles, and the claimant was the employer’s “fleet manager.” The job of fleet manager principally involved large volume sales, but the claimant was also expected to assist in sales to walk-in retail customers.
In 2000 the employer began to promote the sale of a new type of electric bicycle known as an E-bike. Although the retail sales force had been notified that the bikes were to be demonstrated outside the showroom, the fleet sales staff, including the claimant, received no such instruction.
On March 21, 2000, several contract workers of the employer were in the showroom and discussed the E-Bikes with the claimant. The claimant then demonstrated the E-Bike by riding it around the showroom. Within ten to fifteen seconds, the claimant fell off the bike injuring his chest and neck. Following this injury the claimant did not return to work.
Prior to the injury, the claimant advised the employer that he intended to retire and move to Arizona in late March or early April 2000. The claimant also testified that he considered the possibility of opening an E-Bike dealership in Arizona if he was physically able to do so. (See
Finding of Fact 15).
Based on the evidence, the ALJ found the claimant’s injury arose out of and in the course of his employment. The ALJ specifically found that demonstrating the bike was “part of the claimant’s employment,” and the claimant was not engaged in “horseplay” at the time of the injury. However, the ALJ further found that even if the claimant’s activities could be characterized as “horseplay,” there was no serious deviation from the duties of employment, any deviation was “comingled” with the performance of the claimant’s regular duties, and there was no evidence concerning whether or not horseplay was an accepted part of the employment or the extent to which horseplay could be expected in the employment. Consequently, the ALJ found the evidence would not support a finding the claimant engaged in “horseplay” sufficient to remove his activities from the course of his employment.
The ALJ awarded temporary total disability benefits commencing March 21, 2000. In so doing, the ALJ credited the claimant’s testimony and the written report of Dr. Huffman that the claimant has been unable to work since the date of the injury.
I.
The respondents first contend the ALJ erred in finding there was no evidence concerning the extent to which horseplay was an accepted part of the claimant’s employment, and the extent to which horseplay could be expected in this employment. The respondents cite the testimony of the respondent-employer’s owner that he expected E-Bikes to be demonstrated outside and he never saw anyone drive the bike in the showroom. We find no error.
The claimant must prove he sustained an injury arising out of and in the course of his employment. Section 8-43-301(1)(b), C.R.S. 2001. However, a claimant need not prove the injury resulted from a “duty” of the employment if the injury arose out of a “risk which is reasonably incidental to the conditions and circumstances of the particular employment.” Phillips Contracting, Inc. v. Hirst, 905 P.2d 9, 12
(Colo.App. 1995).
The question of whether the claimant proved a particular activity arose out of and in the course of employment is ordinarily one of fact for determination by the ALJ. See L.E.L. Construction v. Goode, 849 P.2d 876
(Colo.App. 1992), rev’d on other grounds, 867 P.2d 875 (Colo. 1994). Because the issue is factual in nature, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001. 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 and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Here, the ALJ found as a matter of fact the claimant was performing the duties of his employment by demonstrating the E-Bike in the showroom. Although there was some evidence to the contrary, the ALJ found that evidence to be unpersuasive, particularly because he credited the evidence that the claimant never received any instruction that the bikes were to be demonstrated outside. Thus, the record contains substantial evidence to support the ALJ’s finding that at the time of the fall the claimant was performing a duty which arose out of his employment.
It follows that we need not address the question of whether substantial evidence supports the ALJ’s alternative holding that, even if the claimant’s demonstration of the bike could be characterized as “horseplay,” the facts would not support application of that doctrine as enunciated in Lori’s Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995). In our view, the horseplay doctrine is applicable when the ALJ finds the claimant’s activity at the time of the injury did not result from a strict “duty” of employment, but the activity might be considered “incident” to the employment depending on the factual circumstances. Because the evidence supports the ALJ’s finding that demonstrating the bike was a duty of the claimant’s employment, it is immaterial whether the evidence would also support the finding that demonstrating the bike was “incident” to the employment under the horseplay doctrine.
II.
The respondents next contend the ALJ erred in awarding temporary disability benefits because the claimant announced his intention to retire prior to the injury. The respondents argue the claimant is responsible for the loss of employment under § 8-42-103(g), C.R.S. 2001, and § 8-42-105(4), C.R.S. 2001, and in any event the claimant caused loss of wages after the retirement. Under the facts, we disagree.
Under § 8-42-103(1)(a), C.R.S. 2001, the claimant is entitled to temporary disability benefits if the claimant proves the injury caused disability, the claimant left work as a result of the injury, and the temporary disability lasted for more than three regular work days. PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The claimant establishes the injury caused disability if the ALJ finds the claimant proved a restriction of bodily function which affected the claimant’s capacity to earn wages as demonstrated by the inability to resume his prior work. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999); Davisson v. Rocky Mountain Safety, Inc., W.C. No. 4-283-201 (June 21, 1999). If the claimant establishes the injury caused temporary total disability, temporary total benefits must continue until such time as the respondents prove the existence of one of the circumstances contained in §8-42-105(3), C.R.S. 2001. Colorado Compensation Insurance Authority v. Industrial Claim Appeals Office, 18 P.3d 790 (Colo.App. 2000). The question of whether the claimant proved disability is one of fact, and proof of disability is not dependent on the presentation of medical evidence. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997).
One circumstance justifying the termination of temporary disability benefits is contained in § 8-42-105(4). The statute provides:
In cases where it is determined that a temporarily disabled employee is responsible for termination of employment, the resulting wage loss shall not be attributable to the to the on-the-job injury.
It is true, as the respondents argue, that this statute applies to loss of the claimant’s pre-injury employment as well as the loss of modified employment after the injury. Colorado Springs Disposal v. Industrial Claim Appeals Office, ___ P.3d __ (Colo.App. No. 01CA0464, March 28, 2002). However, the statute goes on to provide that if the claimant is responsible for the termination from employment, “the resulting wage loss” may not be attributed to the industrial injury.
Because the statute does not define the term “resulting,” we have concluded that word should be accorded its plain and ordinary meaning. Hence, we have held that in cases where the claimant is responsible for the termination of employment, a wage loss “results” from the termination if it is the “consequence or outcome” of the claimant’s conduct in causing the termination. See Lovato v. Cathedral of the Sacred Heart,
W.C. No. 4-463-726 (May 13, 2002); Anderson v. Longmont Toyota, Inc.,
W.C. No. 4-465-839 (February 13, 2002). Consequently, in cases where the claimant is already totally disabled from performing any work, the claimant’s subsequent action in causing a separation from modified or regular employment does not “result” in any wage loss. Lovato v. Cathedral of the Sacred Heart, supra (where claimant voluntarily resigned his pre-injury employment, found a second job, but was subsequently restricted from all employment because of an exacerbation of his injury, the post-exacerbation wage loss was not a “result or consequence” of the claimant’s voluntary resignation from the pre-injury employment and the claim for temporary disability benefits was not barred).
Here, substantial evidence supports the ALJ’s finding the claimant was temporarily totally disabled at the time his resignation became effective. Hence, at the time the claimant actually left employment, the wage loss was already “the result” of the restrictions attributable to the industrial injury, not the claimant’s personal decision to end the employment relationship. Further, the wage loss after the claimant’s resignation remained attributable to the injury, and it is speculative to guess whether the claimant would have sustained any wage loss if there had been no injury and the claimant had proceeded to retire. Indeed, the claimant indicated that he intended to remain employed in Arizona by opening an E-Bike dealership. Cf. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993) (where temporarily partially disabled claimant retired from employment, but subsequently sustained a worsening of condition which rendered her totally disabled, the claimant’s wage loss after the worsening was caused by the injury, not the retirement).
For the same reason, we reject the respondents’ argument that the claimant would be disqualified from receiving temporary disability benefits under the holding of PDM Molding.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 3, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 19, 2002 to the following parties:
James Westover, 870 Pueblo Dr., Lake Havasu City, AZ 86406
Valley Chrysler Dodge Plymouth, 2100 30th St., Boulder, CO 80301
Greg Forst, Mid-Century Insurance, 7535 E. Hampden Ave., #300, Denver, CO 80231
Clifford E. Eley, Esq., 3515 S. Tamarac Dr., #200, Denver, CO 80237 (For Claimant)
Chris Forsyth, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
By: A. Hurtado