Opinion
W.C. No. 4-503-671
September 16, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimant proved a compensable injury and awarded workers' compensation benefits. The respondents contend the ALJ erred in finding the injury arose out of and in the course of the employment. We disagree and, therefore, affirm.
The ALJ's pertinent findings may be summarized as follows. The claimant was employed as a ranch hand. His job required him perform manual labor, including animal care, hay baling and machinery maintenance. The claimant had no set work hours and sometimes worked from 6 a.m. to 9 p.m.
The employer provided the claimant a house on the ranch property. The employer required the claimant to maintain the house mostly on his own time, but occasionally during employment hours. The employer obtained a benefit by having claimant maintain a clean and pleasant public appearance of the home.
In early 2001, the ranch manager instructed a foreman to tell the claimant to get rid of some old appliances outside the claimant's house. Before leaving the ranch during the week of May 11, the foreman told employees to fix some machinery and if they had time, to work around their own places. The claimant and a co-employee worked on a swather machine that day until approximately 4 p.m. when the claimant indicated he was leaving if the co-employee did not object. The co-employee didn't object and continued to work on the swather until 5:30 p.m.
The claimant then loaded some trash in his pickup. At approximately 5:30 p.m. the claimant drove the pickup to an arroyo provided by the employer on the ranch. While dumping trash the claimant fell from the pickup and was injured.
Based on these facts, the ALJ determined the injury occurred while the claimant was performing cleanup of outdoor personal trash, which was expressly required by the foreman. The ALJ also found the cleanup conferred a benefit on the employer. Consequently, the ALJ determined the injury arose out of and in the course of the employment and ordered the respondents to provide medical and temporary disability benefits.
On review the respondents contend the evidence is legally insufficient to support the ALJ's finding the injury arose out of and in the course of employment. We disagree.
An injury "arises out of and in the course of" employment when the origins of the injury are sufficiently related to the conditions and circumstances under which the employee usually performs his or her job functions to be considered part of the employee's services to the employer. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). These requirements are satisfied when it is shown that the injury occurred within the time and place limits of the employment relationship and during an activity that had some connection with the employee's job-related functions. Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991). In this regard, it is sufficient for the claimant to prove that the injury arose out of a risk which was reasonably incidental to the conditions and circumstances of his employment. See Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995). Whether a particular activity has some connection with the employee's job- related functions as to be "incidental" to the employment is dependent on whether the activity is a common, customary, and an accepted part of the employment as opposed to an isolated incident. See Lori's Family Dining, Inc., v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995).
The question of whether the claimant has sustained his burden to prove the requisite nexus between the injury and the employment is one of fact for resolution by the ALJ. Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991); Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Consequently, we are bound by the ALJ's determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2001; Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Under this standard, we must defer to the ALJ's credibility determinations, his resolution of conflicts in the evidence, and his assessment of the sufficiency and probative weight of the evidence. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000); Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990). Accordingly, we have no authority to reweigh the evidence on review and decline the respondents' invitation to do so. See General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
The respondents' arguments notwithstanding, the record contains substantial albeit, conflicting evidence that the claimant was injured on the employer's property during the claimant's normal work shift. Furthermore, the testimony of the employer's foreman and ranch manager contains substantial evidence that the claimant's employment required him to clean up the exterior of the employer provided housing. (Tr. pp. 69, 76, 79, 88, 95, 96, 97, 99). Consequently, the ALJ reasonably inferred that removing trash from the outside of the claimant's house was incidental to the claimant's employment and conferred a benefit on the employer sufficient to establish that the claimant's injury arose out of a risk which was reasonably incidental to the conditions and circumstances of the employment. Therefore, the ALJ did not err in finding the claimant proved the requisite nexus between the injury and the employment.
Furthermore, at the hearing before the ALJ, the respondents did not contend the injury arose out of the obligations created by a landlord/tenant relationship rather than an employment relationship. Consequently, we shall not consider the issue for the first time on appeal. See Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
The respondents' further arguments on this issue have been considered and are not persuasive.
IT IS THEREFORE ORDERED that the ALJ's order dated November 12, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ____________________________________ Kathy E. Dean ____________________________________ Robert M. Socolofsky
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 16, 2002 to the following parties:
Osvaldo Gonzalez, 800 S. Santa Fe #d-16, Fountain, CO. 80817
Vintage Companies Inc., 7710 N. Union Blvd., Colorado Springs, CO 80920-4079
Pinnacol Assurance, Curt Kricksciun-Interagency Mail (For Respondents)
Abel Alvardo, Esq., 700 Broadway Ste. 1101, Denver, CO. 80203(For Claimant)
Gillian Madigan, Esq., 600 17th St. Ste 1600 N, Denver, CO. 80202
Gregory Cairns, Esq., Hall Evans, 1200 17th St. Ste. 1700, Denver, CO. 80202
BY: A. Hurtado