Opinion
W.C. No. 4-439-006
December 8, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which determined the claimant failed to prove injuries sustained in an assault arose out of employment and, therefore, denied claims for temporary disability benefits, medical benefits and penalties. We reverse the order in part, affirm the order in part and remand for further proceedings.
The Claimant was employed as a drywall finisher on October 11, 1999, when he was struck by another drywall finisher, Randy Ruble (Ruble). At the time of the attack the claimant and Ruble were working at the same general job site, but at different locations. As a result of the incident, the claimant and Ruble were immediately discharged from their employment. Thereafter, the claimant was temporarily disabled from performing his regular employment, as a result of injuries sustained in the assault.
The ALJ found that prior to the attack Ruble and the claimant had no contact with each other on or off the job. However, the claimant's co-workers testified that shortly before the assault the claimant told them Ruble was manufacturing and selling drugs. (Tr. February 23, 2000, pp. 16, 47, 74). The claimant denied spreading this rumor. To the contrary, the claimant alleged Ruble attacked him because Ruble was jealous of the claimant's work performance and higher rate of pay. (Tr. March 22, 2000, p. 7).
The ALJ was persuaded that the assault did not arise out of employment because it did not involve "work issues" such as the speed of work, the quality of work or jealousy over wages. In so doing, the ALJ rejected the claimant's testimony concerning Ruble's motivation for the attack. In support, the ALJ relied on evidence that the Worker's Claim for Compensation contained no allegation Ruble was jealous of the claimant's work performance. Similarly, in a letter to the employer dated October 13, 1999, the claimant made no such allegation. Moreover, the claimant did not present evident to corroborate his testimony that he received more praise from the employer than Ruble. On substantial evidence, the ALJ also found that Ruble's rate of pay was higher than the claimant's. To the contrary, the ALJ found the motivation for Ruble's attack was the rumor which the claimant spread around the job site. Under these circumstances, the ALJ denied the claims for medical benefits, temporary disability benefits and penalties under § 8-43-203(2)(b), C.R.S. 2000, for the respondents' failure timely to admit or deny liability. The claimant timely appealed the ALJ's order.
I.
On review the claimant contends the ALJ erred in failing to find the injuries arose out of the employment. In support, the claimant relies on Rendon v. United Airlines, 881 P.2d 482 (Colo.App. 1994). We agree, and therefore, we reverse the ALJ's order dismissing the claim.
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 parties do not dispute the claimant's injury occurred "in the course of employment." However, the "arising out of" test is narrower and involves a question of whether there is a sufficient causal relationship between the employment and the injury. 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. The second 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, 759 P.2d 17 (Colo. 1988). A "neutral force" is one that is neither particular to the claimant nor the employment. Instead, the only relationship to the employment is that the conditions and obligations of the employment placed the claimant in the position where he was attacked. This type of assault has been analyzed under the "positional risk" doctrine. The "positional risk" doctrine 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. In such circumstances, the force is neutral because any person then and there present would have been assaulted. In Re Questions Submitted by U.S. Court of Appeals, 759 P.2d at 22; Horodysky J v. Richard Karanian, ___ P.2d ___ (Colo.App. 98CA0340, July 8, 1999).
The third 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, 759 P.2d 17, 23 (Colo. 1988); Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996) ; Rendon v. United Airlines, supra; 1 Larson, Larsons' Workers' Compensation Law, § 8.01(6)(a) (1999). Injuries resulting from this type of assault have an inherent connection with the employment and are compensable even if the subject of the dispute is unrelated to the work, and if the work merely brought the employees together and created the relations and conditions resulting in the dispute. Rendon v. United Airlines, supra. In Rendon, the claimant was found to have suffered compensable injuries from the verbal and physical assaults by co-workers who believed the claimant to be a homosexual. 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.
A work place assault is compensable unless it arise from a private or personal dispute. In Re Questions Submitted by U.S. Court of Appeals supra. Thus, the critical issue is whether Ruble's assault was motivated by a private dispute imported to the work place, or by some work-related factor.
We agree with the ALJ that the injuries were not the result of a "neutral force." The record amply supports the ALJ's finding that Ruble specifically attacked the claimant in retaliation for the disparaging rumors which the claimant spread at the job site. Thus, this is not a situation where any person at the time and place the claimant was working would have been injured. See Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991).
Nevertheless, the fact that the attack was specifically targeted at the claimant is separate and distinct from whether the attack was based upon a personal dispute imported into the work place. Here, the ALJ found the attack was not motivated by a personal dispute arising outside the work place, and this finding is supported by the record. (Tr. March 22, 2000, pp. 64, 65, 76, 90, 94). In fact, it is undisputed the claimant and Ruble had no contact away from the job site.
To the contrary, ALJ found the attack was motivated by Ruble's anger about the disparaging rumors the claimant was spreading. Thus, we hold as a matter of law that Ruble's anger had an inherent employment connection. The claimant spread the rumor to co-workers, during work hours. Moreover, there is substantial evidence that such rumors could jeopardize Ruble's employment. Therefore, in the absence of evidence of any personal dispute, the record compels the conclusion that the assault was arose from tensions created by the work environment. Horodysky J v. Richard Karanian, supra, (because sexual harassment by co-worker on claimant did not fall in the second category of an inherently private conduct, no err in finding it arose out of the employment); Allen v. Unicco Service Company, W.C. No. 4-365-478 (April 30, 1999) (supervisor's injuries caused by subordinate's assault were compensable where the supervisor approached the subordinate for the purpose of instructing him to discontinue making disparaging remarks to other employees about the supervisor).
The fact that Ruble testified he would have assaulted the claimant for the same conduct outside the work place makes no difference. The work place was the site of the claimant's conduct, and it was the enforced contact of the work place which mixed the claimant's conduct and Ruble's explosive nature.
In reaching our conclusion we recognize the arguable inequity which results when the claimant is compensated for the effects of an assault which the claimant motivated by his own misconduct in the work place. However, our courts have held that it does not matter if the claimant is the initial "aggressor" of a dispute which results in an assault. See Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991) ; Banks v. Industrial Claim Appeals Office, 794 P.2d 1062 (Colo. 1990). Consequently, the ALJ erroneously denied the claim and we reverse that portion of the order.
In view of our conclusions we need not consider the claimant's remaining arguments in support of his contention that the injury arose out of the employment.
II.
To receive temporary disability benefits a claimant must establish a causal connection between the industrial injury and the loss of wages. Section 8-52-105(4), C.R.S. 2000, which governs this October 1999 claim, provides that:
"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 on-the-job injury."
It is undisputed the employer had a policy of automatic termination for fighting on the job. Here, there is substantial evidence to support the ALJ's finding that the claimant was the instigator of the strain and tension which prompted Ruble's attack. Therefore, even if the claimant never threw a punch at Ruble, the ALJ reasonably inferred that the claimant was at fault for the termination based upon fighting with a co-worker on the job. The claimant's arguments to the contrary have been considered and are unpersuasive. Furthermore, the ALJ's finding supports the conclusion the claimant was responsible for the termination of employment. Consequently, the ALJ did not err in denying the claim for temporary total disability benefits. Section 8-42-105(4).
III.
Finally, we remand the matter to the ALJ concerning the claimant's entitlement to medical benefits and penalties under § 8-43-203(2)(a). However, in remanding the matter we should not be understood as expressing any opinion concerning the claimant's entitlement to such benefits and penalties.
IT IS THEREFORE ORDERED that the ALJ's order dated May 12, 2000, is reversed insofar as it denied the claim and the matter is remanded to the ALJ for a new order concerning the claimant's entitlement to medical benefits and penalties.
IT IS FURTHER ORDERED that the ALJ's order is otherwise affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
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. 2000. 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 December 8, 2000 to the following parties:
Chet Hamby, J. Keith Killian, Esq., P. O. Box 4859, Grand Junction, CO 81502
Destiny Schoon, Bacon Drywall, Inc., P. O. Box 1315, Carbondale, CO 81623
Valerie Doyle, Zurich U.S. P. O. Box 370308, Denver, CO 80237
J. Keith Killian, Esq., B. Beecher Threatt, Esq., and Amy K. Eaton, Esq., P. O. Box 4859, Grand Junction, CO 81502 (For Claimant)
Raymond A. Melton, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
BY: A. Pendroy