Safety Rule Violation

The Colorado Workers’ Compensation Act provides for a 50% reduction in compensation benefits where the injury results from the claimant’s willful failure to obey a reasonable safety rule instated by the employer. A claimant’s conduct is “willful” if he or she intentionally does the forbidden act, regardless of whether the claimant had the rule “in mind” and determined to break it. Willful conduct may be inferred from circumstantial evidence including the frequency of warnings, the obviousness of the danger, and the extent to which the actions were deliberate rather than the result of carelessness or negligence. Finally, it should be noted that a finding by an Administrative Law Judge (ALJ) that the rule was not routinely enforced, allows an ALJ to infer the rule did not exist or that the employer acquiesced in such conduct.

In Heien, the Industrial Claim Appeals Office (Panel) affirmed the ALJ’s ruling that the claimant violated a safety rule, when he reached his hand into an operating industrial washing machine, which resulted in the complete severing of his arm at the elbow.

Claimant was employed as a maintenance worker for a hotel and during his scheduled night shifts, he performed laundry duties. At the time of the injury, claimant testified he believed he saw a half-open Coca-Cola bottle in the laundry machine and he opened the door and reached in to remove the item to prevent it from causing damage to the sheets he was washing.

It was established during the hearing that claimant was trained in the use of the industrial laundry machine and had been specifically instructed prior to the injury not to open the machine while it was operating without first turning it off and waiting for the basket to stop spinning. Furthermore, it was found that not only did the machine have a power button, there was a breaker switch next to the machine which could be used to shut it off if the power button or any other mechanism malfunctioned. Additionally, the claimant conceded that there was a warning label on the washing machine warning against reaching into the machine before it was turned off and stopped. Importantly, claimant acknowledged on the record that reaching into the machine before it stopped “went against the posted safety code.”

Based on the above facts, the Panel affirmed the ALJ’s order imposing the 50% reduction. The Panel determined there was substantial evidence in the record to support the findings that (i) claimant knew his conduct violated the employer’s safety rule requiring an employee to wait for the machine to come to a complete stop before opening the door; (ii) claimant was aware of this safety rule as it was communicated to him when he was trained and was written on the machine itself; and (iii) the employer did not fail to enforce this safety rule or acquiesce in employee misconduct or convey the impression that rule violations would be tolerated due to said trainings and the posted warning.

Claims Handling Tip:

Remember that a safety violation can and should be asserted in the initial admission filed in the matter. Moreover, an admission of liability which includes a reduction in benefits for a safety rule violation must include a statement of the specific facts on which the reduction is asserted attached as a separate document to the initial admission. See WCRP 5-5(I) 7 CCR 1103-3 (2019).

Benjamin Heien v. DW Crossland LLC and Liberty Mutual Insurance, W.C. 5-059-7999-01 (ICAO Nov. 29, 2018)

Would you like to know more? Contact Eric J. Pollart at epollart@pollartmiller.com or 877-259-5693.

 

From the January 2019 Pollart Miller Newsletter

2019-02-01T15:12:03+00:00