Opinion
W.C. No. 4-731-877.
June 12, 2008.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Cain (ALJ) dated February 12, 2008, that ordered them to pay temporary total disability benefits and medical benefits. We affirm.
The ALJ issued a full order containing specific findings of fact and conclusions of law pursuant to § 8-43-215, C.R.S. 2007, upon the respondents' request. The ALJ's findings of fact are summarized as follows. The claimant managed a store for the employer. A district manager supervised the claimant. The district manager was scheduled to review the claimant's performance on May 22, 2007, and conduct a "MAP" evaluation of the claimant that morning. The claimant was scheduled to be off work, but came to work for the purpose of attending his evaluation. Another store manager was also scheduled for review by the district manager later that day. Instead, the district manager suggested playing a round of golf and rescheduled the MAP evaluations in order to make more time available for golfing. It was raining that day at the location of the claimant's store. The claimant was reluctant to golf, but did so after the district manager called him a "wuss" and later advised the claimant that they needed to discuss his MAP evaluation, as well as a potential promotion for the claimant. The claimant felt compelled to play golf with the district manager because he was not only intimidating, but the claimant felt he needed to stay in the district manager's favor in order to obtain the promotion.
The claimant went golfing with the district manager and the coworker who was also being evaluated. The claimant took phone calls from an employee while on the course and the district manager provided assistance and instruction as to how to handle corresponding problems. The three discussed business during the golf outing. The district manager and the coworker rode in a cart and the claimant walked with a pull cart. The employer did not pay for the round of golf and the claimant was not "on the clock."
It began to rain and the district manager wanted to speed up play, so he requested that the claimant ride in the back of the cart. The claimant rode on the back of the cart while holding on to his pull cart, which resulted in the claimant being pulled off the golf cart and striking his head on the concrete cart path. He sustained a closed head injury and underwent various medical treatment.
The ALJ determined that the claimant did not act voluntarily in participating in the golf outing and referred to the following findings in support of his determination. The claimant received work-related calls while on the course and handled corresponding work-related matters. The supervisor proposed the golf outing and rescheduled the MAP evaluations in order to leave more time for golfing. The golf outing occurred during work hours on a day that the claimant was to have off, but came to work in order to attend his MAP evaluation. His MAP evaluation and a possible promotion were both discussed while golfing. The injury was not on the employer's premises; however, the supervisor directed the claimant's participation in the golf outing and the golf was, in part, for business. The supervisor promoted the golf. The claimant was motivated and compelled by the supervisor to golf, as evidenced by the supervisor calling the claimant a wuss, describing himself as the ringleader, and discussing work during the outing. The outing occurred during work hours and in close proximity to the MAP evaluations.
The ALJ concluded that the claimant suffered a compensable injury that rendered him temporarily totally disabled and ordered the respondents to pay disability benefits and medical expenses. In reaching his conclusions the ALJ determined that although the golf outing was recreational in nature, the claimant's participation was not voluntary, but at the direction of his supervisor for business-related activities. Cf. Dunavin v. Monarch Recreation Corp., 812 P.2d 719 (Colo.App. 1991) (ski instructor's injury sustained during personal skiing activity with no benefit to employer found not compensable); Angers v. Vail Assoc, Inc., 4-285-328 (March 28, 1997) (ski instructor's injuries on employer's premises not compensable as required training). Wilson v. Scientific Software-Intercomp, 738 P.2d 400 (Colo.App. 1987) (purpose of event solely to boost employee morale and business discussions merely incidental to recreational purpose of event).
In order to be compensable, the injury must arise out of and occur in the course of employment. Section 8-41-301(1)(b), C.R.S. 2007. Section 8-40-201(8), C.R.S. 2007, defines "employment" to exclude "the employee's participation in a voluntary recreational activity or program, regardless of whether the employer promoted, sponsored or supported the recreational activity or program." Similarly, § 8-40-301(1), C.R.S. 2007, defines the word "employee" as excluding a person "while participating in recreational activity, who at such time is relieved of and is not performing any duties of employment."
The statutory amendments to the definition of "employment" require the determination of a claimant's motive in order to ascertain whether the claimant voluntarily engaged in a recreational activity. In so doing, the ALJ may consider whether the employer sponsored, promoted or supported the activity because the employer has the "power to enlarge the scope of employment by its affirmative act of embracing various recreational and social activities." Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141, 1143 (Colo.App. 1998).
The respondents assert that evidence in the record indicates that the relationship of the golf outing to the performance of the claimant's work duties is insufficient under the various factors to be considered in determining whether the claimant's participation in the outing was voluntary. For example, the respondents assert in support of their contentions that the claimant's work-related activities during the golf outing were minimal and, also, that any work was completed hours before the claimant sustained his injuries.
In determining that the claimant did not voluntarily participate in what was found to be a recreational activity the ALJ, citing Dover, supra, gave weight to the following factors regarding the golfing activity: whether it was during work hours, whether it occurred on or off the employer's premises, whether the employer initiated the outing, and whether the employer benefited from it. See also, Price v. Industrial Claim Appeals Office, 919 P.2d 207, 210-11 (Colo. 1996) (considering same factors, together with whether employer exerted control or direction over activity, in reviewing injuries sustained in exercise program). The ALJ recognized that the greatest weight must be given to the factors regarding time and place because they are "strong indicators" of whether the injury rose out of and in the course of employment. Price, 919 P.2d at 211.
Here, the ALJ found that the golf outing occurred during working hours, but off the employer's premises. However, he found that the claimant participated in the outing at the direction and control of his supervisor, in part, to conduct the employer's business. Thus, "[considering the totality of the circumstances," the ALJ determined that the claimant's participation in the golf outing was not voluntary. Findings of Fact, Conclusions of Law, and Order (Order) at 7. The ALJ's examination of the entire circumstances was necessary for determining "whether there is a sufficient nexus between the employment and the injury." In Re Question Submitted by the United States Court of Appeals, 759 P.2d 17, 20 (Colo. 1988), quoting City County of Denver Sch. Dist. No. 1 v. Industrial Comm'n, 196 Colo. 131, 133, 581 P.2d 1162, 1163 (1978).
Ultimately, the question of whether the claimant's participation in an activity was voluntary, or conversely involved a duty or incident of the employment, is one of fact for determination by the ALJ. Dover Elevator Co. v. Industrial Claim Appeals Office, supra; Mendez-Lopez v. American Lumber Construction, W.C. No. 4-434-488 (October 29, 2003). Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. This standard of review requires us to consider 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. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). When determining the credibility of a witness, the ALJ is free to credit all, part, or none of the testimony. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). Furthermore, the ALJ need not make findings concerning every piece of evidence provided the bases of the order are clear from the findings which are entered. We may consider findings necessarily implied by the order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Thus, when considering whether the ALJ's factual determinations are supported by substantial evidence, the scope of review is "exceedingly narrow." Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995).
The record includes the following testimony. According to the coworker, the supervisor was trying to get the claimant to go golfing and, apparently over the telephone, told him he should go. The supervisor then handed the phone to the coworker who told the claimant he should go because the coworker did not want to go by himself. Tr. at 21-22. The coworker testified that the supervisor advised him that they would finish their MAP ("monthly action plan," tr. at 44, or "manager action plan," Suzuki Depo. at 7) evaluations on the golf course. Tr. at 22. He later indicated that the supervisor reviewed MAP evaluation scores and made recommendations on how to make improvements. Tr. at 29. The coworker and the supervisor discussed the MAP evaluation results while driving to the golf course and then later while on the course. Tr. at 32. The coworker considered himself to be working while on the course. Tr. at 37, 40. The three drank alcoholic beverages while golfing, but the claimant's alcohol consumption did not affect his ability to play golf. Tr. at 28-29. The claimant received a few calls while golfing about issues a new employee had with a customer, and the supervisor provided him with advice on the matter. Tr. at 31.
The claimant testified that his supervisor planned to conduct the claimant's MAP evaluation to review areas such as inventory, training, and sales. Tr. at 44. He indicated that his MAP evaluation was scheduled for a day when he was usually off work. Tr. at 44. The store hours were from 9:30 in the morning until 8:30 at night. Tr. at 72. The supervisor initiated a discussion about moving the claimant's MAP evaluation forward so that the three could go golfing in the afternoon. Tr. at 44-46. The claimant expressed to his supervisor his reluctance to go golfing in light of the rainy conditions and the supervisor encouraged the claimant to golf and addressed the claimant as "wuss." Tr. at 48. The claimant and his coworker discussed their mutual reluctance to go golfing with their supervisor. The claimant then spoke with their supervisor and told him he did not want to go. However, the supervisor responded that "we need to talk about work," "your audits," and "the district manager position in Dallas." Tr. at 49. The claimant felt that he had no choice in the matter because he needed to stay in his supervisor's favor in order to obtain a promotion as a district manager. Tr. at 49-50.
The threesome ended up playing golf in what the claimant described as a hard rain. Tr. at 53. The supervisor instructed the claimant to get on the golf cart and the claimant ended up falling and sustaining injuries. Tr. at 54-56. After his accident the claimant eventually woke up in a hospital where he overheard the supervisor instruct the coworker that they would maintain that the claimant had `got drunk" and slipped and fell, with the intent to hold the golf course liable for the claimant's injuries. Tr. at 57.
The supervisor testified by deposition. He stated that "anytime you get people who work together in the same place you're going to talk about work." He explained that the claimant received "a couple of phone calls from his store, and he was having an issue with one of his sales associates with a customer." The supervisor stated that he "kind of helped him to kind of walk through it." He further indicated that work was discussed during the outing "throughout the whole trip." Suzuki Depo. at 24, 49. The supervisor acknowledged that he "can be a little intimidating." Suzuki Depo. at 33. When discussing the golf outing, the supervisor described himself as "the ringleader of the whole thing." Suzuki Depo. at 40.
The ALJ based his examination of the circumstances surrounding the golf outing largely on the testimony of the claimant, his coworker, and their supervisor. The ALJ credited the testimony of the claimant and his coworker, but found the supervisor "was, for the most part, not a credible witness." Findings of Fact, Conclusions of Law, and Order (Order) at 3, ¶ 8. We may not set aside a credibility determination unless the testimony of a particular witness, although direct and unequivocal, is "so overwhelmingly rebutted by hard, certain evidence directly contrary" that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). We are not persuaded that the ALJ erred in weighing the credibility of the witnesses.
The respondents' contentions essentially require that the evidence presented to the ALJ be reweighed on review, but we may not do so. Moreover, we conclude that the ALJ applied the correct legal standards in making his rulings.
IT IS THEREFORE ORDERED that the ALJ's order dated February 12, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
ARMANDO PEREZ, NORTHGLENN, CO, (Claimant).
RADIO SHACK CORPORATION, Attn: 300 RADIO SHACK CIR, C/O: JOHN RAYDER, FORT WORTH, TX, (Employer).
LIBERTY MUTUAL INSURANCE CO, Attn: MICHAEL KETTER, IRVING, TX, (Insurer).
FOGEL KEATING WAGNER, Attn: BRADLEY R. UNKELESS, ESQ., C/O: POLIDORI SHAFNER, PC, DENVER, CO, (For Claimant).
LAW OFFICES OF RICHARD P MYERS, Attn: APRIL MOORE, ESQ., DENVER, CO, (For Respondents).