Opinion
W.C. No. 4-658-496.
August 31, 2006.
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Jones (ALJ) dated March 13, 2006 that denied respondent's request to reduce the claimant's temporary total disability (TTD) benefits because of a safety rule violation. We affirm.
The claimant is employed as a police officer by the respondent city and county. On July 15, 2005, he sustained compensable injuries when the unmarked police car he was driving was involved in a traffic accident. The claimant was responding to a "Code 9" radio call, which by the departmental rules requires him to proceed directly and without delay to the call, obeying all traffic regulations. The claimant approached an intersection and slowed for a stop sign. He attempted a left turn where prohibited and failed to yield to traffic at a stop sign. As a result, the claimant's vehicle was struck by another vehicle at the intersection. The Colorado State Patrol officer who responded to the accident cited the claimant for careless driving based on the determination that the claimant disregarded traffic signs when he attempted to make a left turn where prohibited. The claimant did not exercise due caution at the intersection where the accident occurred. Excessive speed was not involved in the accident.
The ALJ determined that the evidence established that the claimant violated the applicable traffic regulations. The respondent's regulations require the claimant to comply with traffic regulations and the claimant failed to comply with those traffic regulations when he was involved in the accident. However the ALJ further determined that there was no persuasive evidence that the claimant intended to violate the respondent's safety rule. Since the ALJ found that the claimant did not intentionally violate the respondent's safety rule, she denied the respondent's request to impose the fifty percent penalty under section 8-42-112(1)(b), C.R.S. 2005.
The respondents contend the ALJ erred in refusing to reduce the claimant's compensation by fifty percent on account of the claimant's violation of a safety rule. We are not persuaded.
Section 8-42-112(1)(b) permits imposition of a fifty percent reduction in compensation in cases of "willful failure to obey any reasonable rule" adopted by the employer for the claimant's safety. The term "willful" connotes deliberate intent, and mere carelessness, negligence, forgetfulness, remissness or oversight does not satisfy the statutory standard. Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968).
The respondents bore the burden of proof to establish that the claimant's conduct was willful. Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995). The question of whether the respondents carried the burden of proof was one of fact for determination by the ALJ. City of Las Animas v. Maupin, 804 P.2d 285 (Colo.App. 1990). Thus, we are required to uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005. In applying this standard, we must defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
As the respondent contends there is evidence in the record and the ALJ found that the claimant attempted a left turn where prohibited and failed to yield to traffic at a stop sign and further that by disregarding traffic signs the claimant violated the respondent's safety rule. The respondent also points out that the claimant was involved in previous preventable car accidents, although there appear to have been only a few and they occurred over a period of 15 years. Tr. at 65.
It is further true as respondent contends that the claimant's conduct is "willful" if he intentionally does the forbidden act, and it is not necessary for the respondents to prove that the claimant had the rule "in mind" and determined to break it. Bennett Properties Co. v. Industrial Commission, 165 Colo. 135, 437 P.2d 548 (1968); see also Sayers v. American Janitorial Service, Inc., 162 Colo. 292, 425 P.2d 693 (1967) (willful misconduct may be established by showing a conscious indifference to the perpetration of a wrong, or a reckless disregard of the employee's duty to his employer). Moreover, there is no requirement that the respondents produce direct evidence of the claimant's state of mind. To the contrary, willful conduct may be inferred from circumstantial evidence including the frequency of warnings, the obviousness of the danger, and the extent to which it may be said that the claimant's actions were the result of deliberate conduct rather than carelessness or casual negligence. Bennett Properties Co. v. Industrial Commission, supra; Industrial Commission v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952). Indeed, it is a rare case where the claimant admits that his conduct was the product of a willful violation of the employer's rule.
The respondents' reliance on Stockdale v. Industrial Commission, 76 Colo. 494, 232 P. 669 (1925) is misplaced. In Stockdale the employee deliberately took a risk by attempting to cross a bridge that he was instructed not to cross. The bridge collapsed and he suffered injuries that resulted in his death. The court ruled that there was justification in the finding from the evidence that the employee weighed the risks and concluded that the bridge was safe for his passage. Thus, the trial court could reasonably infer that the claimant violated the employer's rule with deliberate intent. Under such circumstances the court found that the trial court did not err in reducing the compensation awarded to the decedent's dependent child.
In the instant case the record discloses that the claimant by disregarding traffic signs violated the respondent's safety rule. However, the ALJ found that the respondents did not establish that the claimant intended to violate the traffic regulations. The factual situation in the instant proceeding is materially different from that existing in Stockdale. Here, the ALJ did not find that the claimant weighed the risks of proceeding in violation of the rule and then deliberately chose the action that constituted that violation. In our view, Stockdale only establishes that it is a sufficient showing that the claimant, knowing the rule, intentionally did the forbidden thing. However, the record here does not compel the conclusion that the claimant's violation of the rule was deliberate in that sense.
Rather, as we read the ALJ's order, she construed the claimant's failure to obey the traffic regulations as the result of carelessness, negligence, forgetfulness, remissness or oversight. Such would not necessarily be willful failure because violations might occur without a deliberate intent on the part of the claimant and would not of itself establish a willful failure as those words are construed in Stockdale v. Industrial Commission, supra. Johnson v. Denver Tramway Corp. 115 Colo. 214, 171 P.2d 410 (Colo. 1946). See also Austin v. Asphalt Paving Company, W.C. No. 4-442-486 (March 2, 2001) (showing of mere thoughtlessness or negligence is not sufficient to show a "willful" violation); Minser-Callender v. Checker Auto Parts, W.C. No. 4-319-617 (August 13, 1998) (same).
Ultimately, the question of whether the respondents proved that the claimant's violation of the rule was willful is one of fact for determination by the ALJ, Industrial Commission v. Golden Cycle Corp., supra., which we must uphold if supported by substantial evidence in the record. The respondent's argument notwithstanding, the record contains substantial evidence from which the ALJ could infer that the claimant did not willfully violate traffic regulations. The ALJ noted that the claimant was not shown to have engaged in a pattern of behavior that would show a disregard or disrespect for the respondent's regulations. Nor was the claimant shown to have been traveling at excessive speeds. The Colorado State Patrol officer testified that his investigation revealed nothing indicating that the claimant deliberately, willfully or recklessly caused this accident; rather it was the result of carelessness. Tr. (11/29/05) at 49-50. Moreover, there was other testimony that there were bushes or trees that block the view of oncoming traffic at the intersection. Exhibit 13. Tr. (11/29/05) at 61-62 and Tr. (11/29/05) Tr. (1/27/06) at 17-20. Here, there is substantial evidence to support the ALJ's finding that the respondent failed to sustain its burden of proof that the claimant intended to violate the respondent's safety regulation. The existence of other evidence which, if credited, might support a contrary determination does not afford us ground to grant appellate relief. See Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963). Under these circumstances, we perceive no basis on which to interfere with the ALJ's order.
IT IS THEREFORE ORDERED that the ALJ's order issued March 13, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Curt Kriksciun
___________________________________ Thomas Schrant
Daryl Miller, Denver, CO, Attn: Mary Padilla, City and county of Denver, Denver, CO, Marshall A. Fogel, Esq., Denver, CO, (For Claimant).
Olivia L. Hudson Smith, Esq., Denver, CO, (For Respondent).