JOE M. ALLEN, Employee, v. FASTENAL, and ST. PAUL TRAVELERS INS. CO., Employer-Insurer/Appellants, and MEDICA HEALTH PLAN/INGENIX, and MAYO FOUND./CLINIC and ST. MARY=S HOSP., Intervenors.
WORKERS= COMPENSATION COURT OF APPEALS
DECEMBER 1, 2006
ARISING OUT OF & IN THE COURSE OF - PROHIBITED ACT. Substantial evidence supports the compensation judge=s findings that the employee=s operation of a mechanized lift without a safety harness was not inherently dangerous and that his failure to use a safety harness was reasonably foreseeable, and the judge=s determination that the employee did not perform a prohibited act barring receipt of workers= compensation benefits.
Determined by Johnson, C.J., Wilson, J., and Stofferahn, J.
Compensation Judge: Bradley J. Behr
Attorneys: Thomas R. Patterson, Patterson, Ostrem & Swisher, Rochester, MN., for the Respondent. Thomas A. Atkinson, John G. Ness & Associates, St. Paul, MN., for the Appellants.
THOMAS L. JOHNSON, Judge
The employer and insurer appeal the compensation judge=s finding that the employee did not perform a prohibited act barring receipt of workers= compensation benefits. We affirm.
Joe M. Allen, the employee, sustained a personal injury on August 4, 2005, while working for Fastenal, the employer, insured by St. Paul Travelers Insurance Company. The employer and insurer admit the employee sustained an injury on that date, but contend the employee was performing an act prohibited by the employer which took the employee outside the scope of his employment and rendered his injury not compensable.
The employee=s job was to fill orders which required him to obtain parts off shelves in the employer=s warehouse. The employee used a picker machine to obtain parts which were on the higher shelves in the warehouse. The machine had a platform on the front that could lift a person to a height of 24 feet and had two forks extending out from the platform. The employee stood on the platform of the picker and drove the machine forwards and backwards using a steering wheel. When the picker was in the correct location, the employee then could raise or lower the platform of the picker machine to raise himself to the height necessary to obtain the needed part. Typically, the employees used the picker machine with a pallet on the forks upon which they placed the parts obtained from the shelves. The picker had a clamp between the forks designed to hold the pallet in place.
In an unappealed finding, the compensation judge found that for at least 18 months prior to June 2005, the employee and other workers used the picker machines to perform their order picking job without the use of safety harnesses. There was no evidence of workers falling from the lifts during this period. (Finding 1.) On or about June 15, 2005, the employer instituted a new safety requirement prohibiting employees from using the picker machine unless the operator was wearing a safety harness which was attached to the picker. On each picker machine, the following statement was posted:
NO Fastenal personnel will operate either picker at a height greater than the beam with the location label, without properly wearing the attached safety harness. (Top of the picker pallet above the top of the beam with the location label will be considered in violation of this rule.)
There are NO exceptions to this rule !!!
The employee testified he learned of the policy when his manager came to him with the harnesses, showed him how to wear the harness and then taped the sign on each of the two picker machines. Prior thereto, the employees were not required to wear harnesses and the employer provided none.
On August 4, 2005, the employee climbed onto the picker but ignored the employer=s policy and did not wear a safety harness. He testified he had a small box of parts to replace on a shelf approximately 12 feet off the ground. The employee attempted to pick up a pallet with the forks but testified the clamp failed to latch on to the pallet and he was not aware the pallet was not on the forks. In the process of replacing the parts on the shelf, the employee stepped back off the platform thinking the pallet was on the machine and fell through the forks of the picker machine. The employee fell approximately 12 feet onto the cement floor of the warehouse sustaining injuries including a loss of consciousness, a fractured rib and a punctured lung.
The employee testified that between June 15 and August 5, 2005, the safety harnesses were not always available. He further testified that between those dates, he, and other employees, filled orders and replaced parts without wearing the safety harnesses. Between June 15 and August 4, 2005, the employee never received a verbal or written warning for not wearing a safety harness. The employee opined that using the picker machine without a harness was not dangerous. He based his opinion on the fact that he used the machine for 18 to 24 months before his injury without any problem. The employee further testified his fall was caused by the lack of a clamp to secure the pallet on the forks rather than his failure to use the safety harness.
The employee=s claim for benefits was heard by a compensation judge at the Office of Administrative Hearings. Following a hearing, the compensation judge found the employee=s operation of the mechanized lift without a safety harness was not inherently hazardous and found the employee=s failure to use the safety harness was reasonably foreseeable by the employer. The compensation judge found the employee=s injury arose out of his employment and awarded benefits. The employer and insurer appeal.
The employer and insurer appeal the compensation judge=s finding that the employee=s injury did not result from the performance of a prohibited act. They argue the employer went to great lengths to formally initiate the safety policy on June 15, 2005, and all employees were instructed in the use of the safety harness. To further remind the employees of the safety policy, a large sign was clearly attached at eye level on the picker machines to remind the employees of the importance of the safety procedure. The employee admitted he voluntarily chose not to wear a harness on the date of his injury because he was Amerely cutting corners@ (T. 44). There is no evidence, the appellants argue, that any supervisors or managers ever witnessed an employee failing to use the safety harness. The appellants assert working 12 feet above a concrete floor on a small platform without a safety harness is inherently dangerous and it was not foreseeable to the employer that employees would violate the policy. Accordingly, the appellants contend the compensation judge=s decision should be reversed and the employee be denied benefits.
A[W]here an employer expressly prohibits the doing of a certain specific act, the disregard of which is not reasonably foreseeable to the employer, a violation thereof takes the employee outside the scope of his employment and injuries resulting therefrom are not compensable even though the act might be considered to be in furtherance of the employer=s business.@ Bartley v. C-H Riding Stables, Inc., 296 Minn. 115, 206 N.W.2d 660, 663, 26 W.C.D. 675, 679-80 (1973). The principle underlying the prohibited act doctrine is that an intentional violation of a specific order or prohibition of the employer may take the employee outside the scope of the employment. AThere are prohibitions which limit the sphere of employment and prohibitions which only deal with conduct within the sphere of employment. A transgression of a prohibition of the latter class leaves the sphere of employment where it was, and consequently will not prevent the recovery of compensation. A transgression of the former class carries with it the result that the man has gone outside the sphere.@ Rautio v. International Harvester Co., 180 Minn. 400, 231 N.W.2d 214, 216, 6 W.C.D. 213, 217, (1930), citing Eugene Dietzen Co. v. Industrial Bd., 297 Ill. 11, 116 N.E. 684 (Ill. 1917).
This court in Otto v. Midwest of Cannon Falls, 59 W.C.D. 25, 35 (W.C.C.A. 1999) explained:
Whether the employee=s performance of a prohibited act takes the employee outside the sphere of the employment depends, in part, on the nature of the act or conduct which is prohibited. Not every safety rule limits the scope of employment. The less hazardous the conduct prohibited by the safety rule, the more likely the rule proscribes conduct within the scope of employment. Further, the more routine or minor the prohibited conduct, the more foreseeable it is an employee will violate the rule.
The compensation judge concluded the employee=s operation of the lift without a safety harness was not inherently dangerous and that the employee=s failure to use the safety harness was reasonably foreseeable. In reaching these conclusions, the compensation judge first noted the employer allowed the employees to work without a safety harness for at least 18 months prior to June 2005. During this time, there was no evidence of any employees falling from the lift. Further, the compensation judge stated in his memorandum:
While it is clear that falling from a height of 10 feet or more to a concrete floor poses the risk of serious injury, there had simply been no history of such an accident prior to the employee=s injury. He and his co-workers were apparently careful about performing their jobs. The evidence does not support the employer and insurer=s position that operation of a lift without a safety harness was inherently hazardous. Indeed, on the date of injury it appears that the employee would not have fallen but for the fact that there was no pallet on the forks of his lift when he stepped backward. This was not the result of his failure to wear a harness, but rather was due to a defect in the lift itself. (Memo. at 6.)
The compensation judge further stated:
The employee testified that he had occasionally used the mechanized lifts without a safety harness after the safety policy was announced, from 6/15/05 to 8/3/05, and that he had observed other workers violating the policy. This was partly because they were not yet acclimated to the equipment, partly because they were not always able to find a harness and partly because they were in a hurry and only needed to pick up one or two items. I find that it was reasonably foreseeable, despite posted notices, that workers would occasionally violate the safety harness policy.
The compensation judge concluded the employee=s violation of the employer=s safety policy was reasonably foreseeable and not inherently dangerous. These are reasonable inferences to be drawn from the evidence. AWhere more than one inference may reasonably be drawn from the evidence, the compensation judge's findings shall be upheld.@ Nord v. City of Cook, 360 N.W.2d 337, 342, 37 W.C.D. 364, 371 (Minn. 1985). The facts upon which the compensation judge relied in reaching these conclusions are amply supported by the evidence. Accordingly, the compensation judge=s decision must be affirmed.