Opinion
W.C. No. 4-365-478
April 30, 1999.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Henk (ALJ) which determined the claimant suffered a compensable injury during an assault and awarded temporary partial disability and medical benefits. We affirm the finding of a compensable injury and the award of medical benefits, set aside the award of temporary disability benefits, and remand for entry of additional findings and conclusions concerning the award of temporary partial disability benefits.
The ALJ determined the claimant suffered a compensable hand injury on November 4, 1997, while attempting to engage in appropriate supervisory responsibilities for Unicco Service Company (Unicco). The ALJ found the claimant was attacked by Mr. Bell (Bell), a subordinate, when he approached Bell for purposes of instructing Bell to discontinue making disparaging remarks to other employees about the claimant.
The claimant sought treatment at the Memorial Hospital Emergency Room, which referred the claimant to Dr. Pise for additional care. The ALJ found that the employer did not designate a physician to treat the claimant's injury. Therefore, the ALJ determined that the respondents are liable for the reasonable and necessary treatment provided by Memorial Hospital and Dr. Pise.
Unicco terminated the claimant's employment for fighting on the job. The claimant obtained alternative employment, at a reduced wage. The ALJ determined the claimant's average weekly wage as $421.35, and he ordered the respondents to pay temporary partial disability benefits from November 6, 1997, through March 12, 1998, the date Dr. Pise released the claimant to return to regular employment.
I.
The respondents first contend the claimant failed to prove a compensable injury. We disagree.
A compensable injury is one which arises out of and in the course of employment. Madden v. Mountain West Fabricators, ___ P.2d ___ (Sup.Ct. No. 97SC856, April 12, 1999). The parties do not dispute the claimant's injury occurred "in the course of employment."
The phrase "arising out of" is narrower than the term "in the course of" . Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991). An injury "arises out of" employment where there exists a causal connection between the work conditions and the injury. In Re Questions Submitted by U.S. Court of Appeals, 759 P.2d 17 (Colo. 1988).
The fact that an injury is the result of an intentional assault by a co-worker does not preclude a finding that the injury arose out of the employment. Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991) . To the contrary, an assault is compensable unless it arises from a private or personal dispute. In Re Questions Submitted by U.S. Court of Appeals, supra. This is true because, in the absence of a private dispute, it is solely the obligations of the employment that compel the association of the employees, and create the relations and conditions resulting in the dispute. Rendon v. United Airlines, 881 P.2d 482 (Colo.App. 1994) . Accordingly, assaults arising out of disputes concerning the performance of work, the possession of work tools, the delivery of a paycheck, quitting, or mediation between employees are compensable. Rendon v. United Airlines, supra. Furthermore, the court has held that injuries sustained to a supervisor during the exercise of normal supervisory duties including disciplinary actions are compensable. See Alpine Roofing Company v. Dalton, 36 Colo. App. 315, 539 P.2d 487 (Colo.App. 1975).
In this case, the claimant testified that one of his employees told him that Bell was telling other employees he was "no good, a drug dealer" and "smoking crack." (Tr. p. 13). The claimant also stated that he believed the negative comments were undercutting his supervisory relationship with other employees; and therefore, he decided to confront Bell and instruct him to stop making these disparaging comments to other employees. (Tr. pp. 9, 10, 14). The claimant stated that when he confronted Bell, he was hit with a 55-gallon drum and then Bell tried to hit him with a chair, which he blocked with his hand and was injured. (Tr. p. 18). The claimant's testimony is corroborated by the testimony of the respondents' witness, Veronica Bazile. Ms. Bazile testified that she was present during the assault, and that Bell used profane language towards the claimant. (Bazile depo. pp. 6, 13). Furthermore, the claimant's former supervisor, Mr. Esselstine, stated that after the assault the claimant mentioned what Bell was saying. (Tr. pp. 88).
The respondents essentially concede the claimant was under the impression that Bell was making inappropriate remarks about him to other employees. However, the respondents contend that the claimant's testimony is insufficient to prove a causal connection between the assault and the employment in the absence of proof that other employees actually heard Bell's remarks. We disagree.
We know of no authority, and the respondents' cite none, in support of their contention that the claimant was required to prove that the subordinate actually committed misconduct before a supervisor's injuries sustained while attempting to counsel or discipline the subordinate "arise out of" the employment. To the contrary, the claimant's injury is compensable even if the claimant overreacted and failed to verify his suspicions before confronting Bell. Regardless of the accuracy of the claimant's suspicions, the genesis of the assault was a dispute involved the performance of work. See Rendon v. United Airlines, 881 P.2d at 485; Triad Painting Co. v. Blair, 812 P.2d at 643.
The ALJ found that, an employee advised the claimant that Bell was making unfavorable remarks concerning the claimant. The ALJ reasonably inferred from this evidence, the undisputed facts that the assault occurred on the employer's premises during normal work hours, and the absence of evidence of any non-work-related animosity between the claimant and Bell supports the conclusion that the assault arose out of the claimant's exercise of his normal supervisory duties. See Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996); Ventura v. Albertson's Inc., 856 P.2d 35 (Colo.App. 1992). Moreover, these findings and inferences support the ALJ's conclusion that the injury "arose out of" the employment, and therefore, we must uphold the ALJ's finding of a compensable injury.
II.
The respondents contend the claimant refused the employer's offer of medical treatment. Therefore, they argue the ALJ erred in finding that the Memorial Hospital and Dr. Pise are authorized providers. We perceive no error.
The respondents are liable for authorized medical treatment which is reasonable and necessary to treat the industrial injury. Section 8-42-101(1)(a), C.R.S. 1998; Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). Treatment provided in the normal progression of referrals from an authorized provided is also authorized. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997).
Section 8-43-404(5)(a), C.R.S. 1998, affords the employer the right to select the authorized treating physician in the first instance. However, where the employer fails to exercise that right upon notice of the injury, the right of selection passes to the claimant and the provider selected by the claimant is authorized to treat the injury. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987).
The question of whether the employer tendered the services of a physician "in the first instance" is one of fact for resolution by the ALJ. Therefore, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998. Under the substantial evidence standard we must defer to the ALJ's credibility determinations and her resolution of conflicts in the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The record contains a direct conflict between the claimant and Mr. Esselstine concerning whether the employer tendered medical services to treat the industrial injury. The ALJ resolved the conflict in favor of the claimant's testimony that when he reported the injury to Unicco's Night Manager, the employer did not instruct him to see any particular doctor and the claimant then selected Memorial Hospital. (Tr. p. 19).
The claimant's testimony is alone sufficient to support the ALJ's determination that the right to select a treating physician passed to the claimant, who chose Memorial Hospital as the treating provider. See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986). Further, the respondents do not dispute that Memorial Hospital referred the claimant to Dr. Pise for ongoing care. Under these circumstances, the ALJ correctly determined that the respondents are liable for the medical expenses incurred by the claimant at Memorial Hospital and with Dr. Pise.
III.
The respondents also contest the ALJ's calculation of average weekly wage. Based upon the claimant's wages between August 17, 1997, and the date of injury, the ALJ calculated the claimant's average weekly wage as $421.25. The respondents contend the ALJ abused her discretion in failing to calculate average weekly wage based upon the claimant's earnings from July 14, 1997, to the date of injury, which produces an average weekly wage of $374.99. We perceive no abuse of discretion.
Section 8-42-102(3), C.R.S. 1998, affords the ALJ wide discretion to calculate the claimant's wage "in such other manner" or use "any method" the ALJ deems will "fairly determine" the claimant's average weekly wage. We may not interfere with the ALJ's exercise of discretion in the absence of a clear abuse of discretion. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). The standard on review of an alleged abuse of discretion is whether the ALJ's determination "exceeds the bounds of reason" as where it is unsupported by the law or the evidence. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985); Coates, Reid Waldron v. Vigil, supra.
There is substantial evidence to support the ALJ's finding that the claimant's last raise at Unicco was August 17, 1997. (Tr. pp. 22, 90; Discussion Conclusions of Law). Under these circumstances, the ALJ's implicit determination that it would be unfair to calculate the claimant's average weekly wage based on his lower pay rate before August 17 does not exceed the bounds of reason. Therefore, we cannot say the ALJ's calculation of average weekly wage is an abuse of discretion.
IV.
Lastly, the respondents contest the ALJ's award of temporary partial disability benefits. The respondents contend, inter alia, that the claimant failed to prove that his wage loss during the disputed period was causally related to the industrial injury. We conclude that the ALJ's findings of fact are insufficient to permit appellate review, and therefore, we remand the matter for additional findings and the entry of a new order. Section 8-43-301(8).
To establish an entitlement to temporary disability benefits, the claimant must prove that the industrial injury has caused a "disability," and that he has suffered a wage loss which, "to some degree," is the result of the industrial disability. Section 8-42-103(1), C.R.S. 1998; PDM Molding, Inc. v. Stanberg, 898 P.2d 542, 546 (Colo. 1995). A "disability" exists when the claimant is unable to perform pre-injury employment duties. PDM Molding, Inc. v. Stanberg, supra; see also McKinley v. Bronco Billy's, 903 P.2d 1239 (Colo.App. 1995). To prove a "disability" the claimant is not required to present medical evidence that the attending physician restricted him from work. Lymburn v. Symbios Logic, 952 P.2d 831 (Colo.App. 1997). In fact, the claimant's testimony may suffice to establish a temporary "disability." Lymburn v. Symbios Logic, supra.
Furthermore, where the claimant establishes an initial entitlement to temporary total disability benefits, those benefits continue until terminated in accordance with § 8-42-105(3) (a)-(d), C.R.S. 1998. PDM Molding, Inc. v. Stanberg, supra. Section 8-42-105(3)(c) terminates temporary disability benefits when the claimant's "attending" physician gives the claimant a written release to return to regular employment. Popke v. Industrial Claim Appeals Office, 944 P.2d 677 (Colo.App. 1997).
Here, the ALJ made no findings of fact concerning the evidence she relied upon to award temporary partial disability benefits. Consequently, we are unable to ascertain the basis for the ALJ's determination that the claimant sustained his burden to prove that he was temporarily disabled commencing November 6, 1997. On remand the ALJ shall issue specific findings of fact concerning the claim for temporary partial disability benefits which articulate the evidence she relied upon to find that the respondents are liable for temporary partial disability benefits.
In view of our remand, it is premature to consider the respondents' remaining arguments on the issue of temporary disability.
IT IS THEREFORE ORDERED that the ALJ's order dated July 1, 1998, is set aside insofar as it awards temporary partial disability benefits, and the mater is remanded for the entry of a new order on the issue of temporary disability consistent with the views expressed herein.
IT IS FURTHER ORDERED that in all other respects the ALJ's order is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain ______________________________ Kathy E. Dean
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed April 30, 1999 to the following parties:
Michael Allen, 3105 East Dale St. #314, Colorado Springs, CO 80909
Roy Van Esselstine, UNICCO Service Company, 2424 Garden of the Gods Road, Colorado Springs, CO 80919
Paul Shea, Liberty Mutual Insurance Co, PO Box 3539, Englewood, CO 80155-3539
William A Alexander Jr., Esq, Alexander Ricci LLC, 3608 Galley Road, Colorado Springs, CO 80909 (For Claimant)
Jonathan Robbins, Esq., 1120 Lincoln St, Ste. 1606, Denver CO 80203(For Respondents)
BY: AP