Triad Painting Co. v. Blair

• Decision Date: 10 June 1991
• Docket Number: No. 90SC383,90SC383
• Parties: TRIAD PAINTING COMPANY and State Compensation Insurance Authority, Petitioners, v. Roger L. BLAIR and the Industrial Claim Appeals Office, Respondents.
• Court: Colorado Supreme Court

Page 638

812 P.2d 638

TRIAD PAINTING COMPANY and State Compensation Insurance Authority, Petitioners, v. Roger L. BLAIR and the Industrial Claim Appeals Office, Respondents.

No. 90SC383.

Supreme Court of Colorado En Banc.

June 10, 1991.

Paul Tochtrop, Denver, for petitioners.

Ozer, Trueax & Kullman, P.C., Ronald M. Coffee, Colorado Springs, for respondent Roger L. Blair.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Paul H. Chan, Asst. Atty. Gen., Denver, for respondent The Indus. Claim Appeals Office.

Justice LOHR delivered the Opinion of the Court.

We granted certiorari to review the Colorado Court of Appeals' judgment in Blair v. The Industrial Claim Appeals Office, No. 89CA1222 (May 3, 1990) (unpublished opinion). The court of appeals reversed an administrative order denying workers' compensation benefits for an injury incurred by Roger L. Blair in an altercation with a job site supervisor. The court of appeals held that an injury resulting from assault is compensable if the dispute was related to work conditions. The court further held that identification of the claimant as the "initial aggressor" does not lead to a denial of benefits. We affirm the judgment of the court of appeals.

I.

Roger L. Blair was employed as a painter by Triad Painting Company (Triad), a subcontractor of Bassett Construction Company (Bassett). On the date of his injury, December 19, 1985, Blair was painting at a job site supervised by Doug Brown, an employee of Bassett. In ensuing proceedings on Blair's claim for workers' compensation, an administrative law judge (ALJ) for the Department of Labor found Brown to be a credible witness and therefore adopted his version of the events that led to Blair's injury. Brown described the incident as follows. ¹

Brown overheard Blair voicing complaints about the job. Brown, seeking to avert the potential for a mechanic's lien, approached Blair and asked him if Triad was paying him. Blair said he was being paid, but indicated that he was angry over lack of overtime. Brown remarked that Blair did not even show up during regular hours, then returned to his office. As Blair gathered his tools to leave, he continued to voice loud complaints, now directed at Brown. Blair's comments included name calling and profanity.

Brown again left his office to confront Blair. Upon seeing Brown, Blair set down buckets he was carrying but continued to hold a roller pole, used in painting. Brown approached him "face-to-face," the two stood looking at each other for a time, then Brown turned to walk away. Blair mumbled something, and Brown kicked over one of the buckets. Blair made a quick movement. Brown, thinking Blair intended to strike him with the pole, grabbed Blair by the collar and threw him to the floor. Blair rose swinging. Brown again threw him to the floor, ending the physical altercation.

Blair allegedly sustained injuries to his ribs and lower back that have made his return to work impossible. In May 1986, he filed for workers' compensation. Included in the evidence before the ALJ was testimony by a psychologist who had examined Blair to evaluate his level of pain. The psychologist testified that in his opinion, Blair exaggerated his degree of pain. The psychologist further testified that tests administered during his one and one-half hour evaluation of Blair suggested a tendency by Blair "to bend the facts and rules to fit his situation to his benefit," and that Blair's test results indicated a longstanding personality disorder.

The ALJ found that the altercation between Blair and Brown "was provoked by the loud and obnoxious behavior of [Blair] toward Doug Brown," and "that any injuries [Blair] sustained were caused by his longstanding personality disorder, and did not arise out of and within the course and scope of his employment." The ALJ therefore denied Blair's claim. The Industrial Claim Appeals Panel affirmed after concluding that the "factual determination" by the ALJ was supported by "substantial evidence." ² The court of appeals reversed, holding that as a matter of law, injuries resulting from a dispute over work conditions are compensable and that such injuries are not rendered non-compensable simply because the claimant was the "initial aggressor." Blair, No. 89CA1222, slip op. at 1. ³

Triad and its workers' compensation insurer, State Compensation Insurance Authority ⁴ (collectively, the "employer group"), dispute the holding of the court of appeals. The employer group asserts that when a claimant sustains injuries in an altercation with his job site supervisor in which the claimant is the initial aggressor, the injuries are not compensable under the workers' compensation laws. The employer group relies on language in the relevant statutes in advancing two arguments in support of this assertion: (1) injuries sustained by the "initial aggressor" in an altercation do not arise out of and in the course of the claimant's employment, and (2) the injuries sustained by Blair are the expected result of his aggressive action and therefore are intentionally self-inflicted. As a threshold issue, we consider whether the ALJ erred in concluding that Blair's injuries did not arise out of and within the course and scope of his employment because they were caused by his longstanding personality disorder. Determining that the ALJ's conclusion is not legally supportable, we then address the employer group's contentions that workers' compensation is nevertheless precluded because Blair was the initial aggressor.

II.

A.

The Workers' Compensation Act of Colorado, articles 40 to 47 of title 8, 3B C.R.S. (1990 Supp.), provides exclusive remedies for compensation of an employee by an employer for work-related injury. § 8-41-102, 3B C.R.S. (1990 Supp.); see, e.g., Popovich v. Irlando, 811 P.2d 379, 382 (Colo.1991); Curtiss v. GSX Corp. of Colorado, 774 P.2d 873, 874 (Colo.1989); Kandt v. Evans, 645 P.2d 1300, 1302 (Colo.1982). A right to recovery under the Workers' Compensation Act is conditioned on a finding that the injury occurred while the claimant was "performing service arising out of and in the course of the employee's employment," § 8-41-301(1)(b), and that "the injury ... is proximately caused by an injury ... arising out of and in the course of the employee's employment," § 8-41-301(1)(c). ⁵ We have held that "arising out of" and "in the course of" employment comprise two separate requirements. Industrial Comm'n v. London & Lancashire Indemnity Co., 135 Colo. 372, 376, 311 P.2d 705, 707 (1957); accord Popovich, 811 P.2d at 383; Tolbert v. Martin Marietta Corp., 759 P.2d 17, 20 (Colo.1988). ⁶

"The phrase 'in the course of' refers to the time, place and circumstances under which the injury occurred." Tolbert, 759 P.2d at 20 n. 3; accord London & Lancashire, 135 Colo. at 376, 311 P.2d at 707. "The 'course of employment' requirement is satisfied when it is shown that the injury occurred within the time and place limits of the employment relation and during an activity that had some connection with the employee's job related functions." Popovich, 811 P.2d at 383. The parties do not dispute that Blair's injury occurred at the job site, during working hours, while he was employed, and while he was gathering his tools after completion of a job assignment. These facts establish that the injury occurred in the course of Blair's employment. Thus, the focus of our inquiry is whether Blair's injury arose out of his employment.

The phrase "arising out of" is narrower than the phrase "in the course of." Popovich, 811 P.2d at 383. An accident "arises out of" employment when there is a causal relationship between the employment and the injury. London & Lancashire, 135 Colo. at 376, 311 P.2d at 707; accord Tolbert, 759 P.2d at 20. We recently elaborated upon that test in Popovich, stating that "[a]n injury ... 'arises out of' employment when it has its origin in an employee's work-related functions and is sufficiently related thereto as to be considered part of the employee's service to the employer in connection with the contract of employment." Popovich, 811 P.2d at 383.

Blair's injuries are not rendered noncompensable for failure to satisfy the "arising out of employment" requirement simply because they were caused by an intentional act of a supervisor. We held in Kandt that workers' compensation provides the exclusive remedy for an employee injured by an intentional act of a co-employee when both were acting in the course of their employment. 645 P.2d at 1304-05. We considered this to be "consistent with the aim of workmen's compensation schemes to spread the cost of hazards of the workplace, one of which is intentional interference with an employee's legal interests by a fellow employee." Id. at 1305. We conclude that these considerations are equally applicable to the situation present here, in which the supervisor of the job on which Blair was working was employed by the general contractor, Bassett, rather than the subcontractor, Triad, which employed Blair.

We recognized in Tolbert that for the purpose of the "arising out of employment" requirement of the Workers' Compensation Act, assaults upon employees can be divided into three categories: (1) those with an "inherent connection" to employment such as a dispute over performance, pay or termination; (2) those stemming from "inherently private" disputes imported into the employment from the claimant's domestic or private life and not exacerbated by the employment; and (3) those resulting from a "neutral force" such as random assaults. Tolbert, 759 P.2d at 23-24; accord Banks v. Industrial Claim Appeals Office, 794 P.2d 1062, 1064 (Colo.App.1990). We noted that "[i]t is 'universally agreed' that an assault is compensable if it grew out of an argument over performance of work, possession of work tools or equipment, delivery of a paycheck, quitting or being terminated, or...