POONISHA KORACH, Employee/Appellant, v. CENTRAL CONTAINER CORP., and CAMBRIDGE INTEGRATED SERVS., Employer-Insurer.

 

WORKERS= COMPENSATION COURT OF APPEALS

JULY 23, 2003

 

HEADNOTES

 

ARISING OUT OF & IN THE COURSE OF - PROHIBITED ACT.  The compensation judge properly concluded that the employee was barred from receiving workers= compensation benefits for his July 24, 2002, injury by the employer=s safety rules and specific instructions against operating a particular type of forklift without specific training and licensure as a driver on that type of forklift.

 

 

Affirmed.

 

Determined by Rykken, J., Wilson, J., and Pederson, J.

Compensation Judge: William R. Johnson

 

OPINION

 

MIRIAM P. RYKKEN, Judge

 

The employee appeals from the compensation judge=s denial of the employee=s claim based upon the judge=s finding that because the employee was injured while performing a prohibited act, his injury is not compensable.  We affirm.

 

BACKGROUND

 

In March 1999, Mr. Poonisha Korach, the employee, was hired by Central Container Corporation, the employer.  Central Container Corporation operates a facility that cuts pre-fabricated cardboard into various shaped boxes, applies print, and ships them to its customers.  The employee initially worked as a laborer or warehouseman in the production area, and he later obtained a job as a Clark forklift driver.  Although the employer utilizes two types of forklifts, the AClark@ and the ARaymond,@ the employee was only trained on and authorized to operate the Clark forklift.  Before working as a Clark forklift driver, the employee attended a series of classes, watched a video tape demonstration, passed a written test and practiced driving the forklift at least twice under supervision.  He also practiced driving the Clark forklift on his own, without supervision.

 

The employer utilizes 7 to 8 Clark forklifts and 2 Raymond forklifts at its facility.  Only the Clark forklifts are used during the second shift; Raymond forklifts are typically not used during the second shift, the employee=s work shift, but instead are stored in a separate area.  If needed, the night shift supervisor operated the Raymond forklift during the second shift.  Operating procedures vary between the forklifts. For example, a driver is seated while operating the Clark forklift, and stands while operating the Raymond forklift.  In addition, the Raymond forklift is typically driven in reverse and has a different type of steering mechanism and only one foot pedal.

 

 The employer promulgated a written policy concerning forklift safety rules in compliance with federal safety guidelines, (Er. Ex. 1) which provided that only those employees who had been trained and then licensed to drive forklifts were allowed on the equipment, and that separate training and licensing was required for the two types of forklifts.  The employer also had prepared written forklift training procedures.  (Er. Ex. 6.)  The employee acknowledged receipt of the safety rules during his initial orientation.

 

On July 24, 2000, the employee worked during the second shift, which was an afternoon and evening shift, performing his normal duties including driving the Clark forklift and pulling product off of the line to stage it.  The employee=s supervisor directed the employee to help a co-worker unload trucks if production work in his area became slow.  The employee testified that when the work slowed and when he offered assistance to the designated co-worker, that person told him that he did not need his help and, further, that he would Ajust be in the way.@  The employee then decided to practice on the Raymond forklift while waiting for more product to come down the assembly line.

 

The employee parked his Clark forklift, went to the warehouse area where a Raymond forklift was parked, unplugged the mechanism for the battery, plugged it into its battery,  drove the forklift to the shipping area where no employees worked during the second shift (and where he had previously practiced driving a Clark forklift) and practiced driving up and down the aisle.  As he turned a corner at the end of an aisle he had difficulty engaging the steering, which caused him to drive into a rack.  To avoid collision with the rack, he attempted to steer and pulled his foot off the pedal which activated the kill switch.  The forklift jerked, throwing the employee partially off the forklift.  However, the forklift continued to move forward and the employee=s left foot was crushed between the forklift and either a pallet or metal vertical beam on one of the racks.

 

Before July 24, 2000, the employee participated in only one authorized and supervised demonstration or operation of the Raymond forklift.  Mr. Dufner, one of the employer=s supervisors and the person who was in charge of training on the Raymond forklift, showed the employee how to operate the lift, but did not allow him to move or drive the forklift, and specifically told the employee that he was not to operate the Raymond forklift again because he was not trained on it.  The employee=s job did not require him to operate the Raymond forklift.  However, he testified that he had practiced on the Raymond forklift 4 to 6 times before his injury, and that Aas far as I knew I was allowed to@ practice on the Raymond forklift.  The employee apparently assumed that he was being trained on the Raymond forklift; he had reported this to the emergency room physician after his accident, and testified that Ato my knowledge I was well within my rights to practice on the forklift and do exactly what I had done or started out to do.@  He also referred to his training on the Clark forklift, and testified that when he practiced on the Clark forklift, before viewing the instructional videotape and before taking the certification examination, he first drove twice under supervision and then later on his own.^[1]

 

After his injury, the employee was transported by ambulance to North Memorial Hospital, where he was hospitalized for approximately four months.  He remained off work for several months while he eventually progressed from using a wheel chair, then crutches, and then a cane for walking.  He eventually returned to work for the employer by approximately February 1, 2001, performing office work.  He has since been laid off from the employer and is working for another employer. The employee currently is able to walk but requires orthotic inserts for his shoes.  As a result of his injury he continues to have restrictions that limit him to sedentary work and that limit the use of his left foot.

 

At the time of the injury, the employer was insured for workers= compensation liability by Cambridge Integrated Services, the insurer.  The employer and insurer initially accepted primary liability for the employee=s injury, and paid temporary total and temporary partial disability benefits through approximately April 15, 2002, paid medical expenses on behalf of the employee, and initially provided him with rehabilitation assistance.  The employer also paid benefits based on a permanency rating of 10.58% permanent partial disability of the whole body.  In April 2002, the employer and insurer withdrew their admission of primary liability, and filed a notice of intention to discontinue benefits, contending that the employee=s injury was not in the course and scope of his employment because the injury  occurred while he performed a prohibited act.  Following an administrative conference, a compensation judge issued an Order on Discontinuance Pursuant to Minn. Stat. ' 176.239, in which he granted the employer=s request to discontinue benefits.  The employee filed an objection to discontinuance, alleging that he was entitled to ongoing temporary partial disability benefits from April 22, 2002, as well as ongoing payment of medical and rehabilitation benefits, based on the physical restrictions attributable to his work injury.

 

This matter was heard before a compensation judge on September 20, 2002.  In Findings and Order, served and filed October 21, 2002, the compensation judge determined that the employee=s injury on July 24, 2000, did not arise out of and in the course of his employment because the employee was injured while performing a prohibited act.  The compensation judge found that the employee Aclearly acted in violation of a direct, timely, unequivocal and enforced prohibition,@ since he violated the employer=s safety policy which prohibited operation of the Raymond forklift without required training.  The compensation judge awarded a credit to the employer and insurer for those benefits already paid to the employee.  The employee appeals.

STANDARD OF REVIEW

 

On appeal, the Workers' Compensation Court of Appeals must determine whether "the findings of fact and order [are] clearly erroneous and unsupported by substantial evidence in view of the entire record as submitted."  Minn. Stat. ' 176.421, subd. 1 (1992).  Substantial evidence supports the findings if, in the context of the entire record, "they are supported by evidence that a reasonable mind might accept as adequate."  Hengemuhle v. Long Prairie Jaycees, 358 N.W.2d 54, 59, 37 W.C.D. 235, 239 (Minn. 1984).  Where evidence conflicts or more than one inference may reasonably be drawn from the evidence, the findings are to be affirmed.  Id. at 60, 37 W.C.D. at 240.  Similarly, findings of fact should not be disturbed, even though the reviewing court might disagree with them, "unless they are clearly erroneous in the sense that they are manifestly contrary to the weight of the evidence or not reasonably supported by the evidence as a whole.@  Northern States Power Co. v. Lyon Food Prods., Inc., 304 Minn. 196, 201, 229 N.W.2d 521, 524 (1975).

 

DECISION

 

The compensation judge found that at the time of his injury, the employee was acting in violation of a direct, timely, unequivocal and enforced prohibition.  The judge concluded, therefore, that the injury was not compensable under the Minnesota workers= compensation act.  The employee appeals, arguing that the compensation judge=s finding that the employee was injured while engaged in a prohibited act is erroneous as a matter of law and is not supported by substantial evidence in the record.

 

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.   Otto v. Midwest of Cannon Falls, 59 W.C.D. 25, 35 (W.C.C.A. 1999).  AWhere 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, 26 W.C.D. 675 (1973).  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. 214, 6 W.C.D. 213 (1936), citing Eugene Dietzen Co. v. Industrial Bd. of Ill., 297 Ill. 11, 116 N.E. 684 (Ill. 1917).

 

In Otto, where an employee who worked in a warehouse setting violated a safety rule that prohibited walking or standing on pallets, this court  determined that the employee=s injury was not barred by the prohibited act doctrine, but further addressed the factors that must be considered when determining if an injury has occurred while an employee has performed a prohibited act:  

 

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.

 

Otto, 59 W.C.D. at 35 (citing cases where claims were barred by the prohibited act doctrine).  In cases where the claims were barred under that doctrine, the act or conduct prohibited by the employer was inherently hazardous and likely to result in injury if violated, the employee was specifically instructed verbally not to perform a specific act, and the employer did not reasonably foresee the employee would disregard the prohibition.  Id. at 35-36.

 

The employee argues that the compensation judge erred by not analyzing the Otto factors when determining whether the employee=s actions at the time of his injury constituted a prohibited act.  The employer and insurer contend that the compensation judge addressed each of the factors related to the prohibited act doctrine, and that the evidence of record provides substantial support for the judge=s findings. The employer and insurer argue that driving a forklift is inherently dangerous, and that the employee was specifically advised to not operate the Raymond forklift.  The employer and insurer argue that the employer had a specific prohibition regarding the use of forklifts by unlicensed employees, as outlined in its document entitled AForklift Safety Rules, and that the employee admitted receiving a copy of those rules.

 

The employee first argues that there was no credible evidence presented at trial to support a finding that driving a forklift without a license was inherently dangerous nor likely to result in an injury if rules prohibiting operation were violated.  References in the compensation judge=s findings show that he considered whether driving the Raymond forklift without a license was inherently dangerous or likely to result in an injury if rules prohibiting its operation were violated.  He described the Raymond forklift=s steering mechanism, contrasting it to that of the Clark forklift, and referred to the Raymond steering controls as being Asomewhat counter-intuitive.@ The compensation judge also referred to the Avery dangerous nature of driving such a forklift with counter-intuitive controls@ and stated that the policy on driving forklifts was reasonable and was designed to prevent serious injury, such as was sustained by the employee.   

 

The employee also argues that the record does not contain substantial evidence to show that the employee had been specifically and verbally instructed not to drive the Raymond forklift.  There is conflicting evidence in the record on whether the employee was specifically instructed not to drive the Raymond forklift.  The employer representatives testified that safety meetings were held in the workplace, at which forklift safety and training requirements were discussed, and that safety warnings were posted on work site bulletin boards.  The employee testified that he had asked Mr. Dufner, the person in charge of training on the Raymond forklift, to train him.  On one occasion, Mr. Dufner allowed the employee to operate the controls of the Raymond forklift, while Mr. Dufner supervised him, even though the employee had not undergone required training.  The employee also testified that another employee had shown him how to connect the batteries on the Raymond forklift in order to operate it.  Mr. Dufner, on the other hand, testified that he did not specifically train the employee to operate the Raymond and also testified that after the one occasion when he showed the employee how to operate the Raymond forklift, he advised the employee that he was not to operate it again.  The employee disputes that portion of Mr. Dufner=s testimony, and testified that he did not recall Mr. Dufner expressly advising him to never operate the Raymond forklift again.   The employee also testified that he had practiced the Raymond forklift on 4 to 6 previous occasions and that he believed he had permission to do so. 

 

The compensation judge had the opportunity to hear the testimony from the employee and from employer=s witnesses.  In his Findings and Order, he stated that he accepted Mr. Dufner=s testimony, that he would never have let the employee drive the Raymond forklift without supervision, Aas fact.@  The compensation judge did not find credible the employee=s testimony that he was authorized to Apractice@ on the Raymond forklift and that he was being trained on that type of forklift.  It is the trier of fact's responsibility to assess the credibility of a witness.  Tolzmann v. McCombs-Knutson Associates, 447 N.W.2d 196, 198, 42 W.C.D. 421, 424 (Minn. 1989) (citing Even v. Kraft, Inc., 445 N.W.2d 831, 835, 42 W.C.D. 220, 225 (Minn. 1989)).  It is not the role of this court to evaluate the credibility and probative value of witness testimony and to choose different inferences from the evidence than the compensation judge.  Krotzer v. Browning-Ferris/Woodlake Sanitation Serv., 459 N.W.2d 509, 513, 43 W.C.D. 254, 260-61 (Minn. 1990).  Although there is conflicting testimony in the record as to what Mr. Dufner or other employer representatives may have advised the employee concerning prohibitions on operating the Raymond forklift, the compensation judge accepted the testimony of the employer=s witnesses.  It is clear from the judge=s decision that he did not find the employee=s explanation credible.  There is certainly information in the record that could support a different inference than that reached by the compensation judge, but we are constrained by our standard of review to determine whether the record contains substantial evidence to support the compensation judge=s findings.  In this case, there is adequate information in the record to support the finding that the employer specifically advised the employee to not operate the Raymond forklift.

 

The employee also argues that the employee=s conduct was reasonably foreseeable, and therefore the employer could reasonably foresee that the employee would disregard the prohibition against unauthorized driving of a forklift.  The compensation judge=s findings show that he considered this third factor, the foreseeability of the employee=s conduct.  The employee argues that other employees had violated the rule against unauthorized use of forklifts in the past, but that previous violations of the rules resulted in no disciplinary action other than a verbal warning not to repeat the act.  The employee also argues that the supervisor, Mr. Dufner, acknowledged that he allowed the employee to operate the Raymond forklift without having shown the employee the video or having given him the written test.^[2]  The employee argues that the foreseeable nature of his conduct did not take him outside the scope of his employment.

 

The employer=s former safety director testified that he was not aware of an uncertified employee operating a Raymond forklift without supervision or training, and that he attributed this to variance in operation between the Raymond and the other type of forklift.  The compensation judge cited to the testimony of the employee=s supervisor, Mr. Goalen, who testified about his surprise in learning that the employee was injured in an area of the building where he was not authorized to be.   The judge concluded that A[i]t was thus not an action that the employer could reasonably foresee this employee would be engaged in.@  The record supports the judge=s conclusion that the employee=s actions were not Areasonably foreseeable.@

 

The employee argues that the compensation judge=s discussion of the third element in the Otto three-part test is not contained in his findings but instead is in his memorandum, and that the compensation judge made no specific finding on this important element.  We agree that the limited portion of the judge=s analysis that refers to the foreseeable nature of the employee=s acts is contained in his memorandum.  We have previously  concluded that a Amemorandum may be, technically, an inappropriate place for a finding of fact.@  Brown v. Pueringer Dist./Int=l. Multi-Foods, 56 W.C.D. 176 (W.C.C.A. 1996), citing to Minn. Stat. ' 176.371.  However,  and more importantly, while more explanation as to the judge=s rationale for his conclusions on this factor might have been useful, the judge=s decision as a whole provides adequate basis for review of the disputed issues.  Olson v. Menasha Corp., slip op. (W.C.C.A. Dec. 21, 1999).

 

As stated by the compensation judge, this was not the case of an employee performing a permissible act in a prohibited manner.  Instead, the judge found that the employee Aclearly acted in violation of a direct, timely, unequivocal and enforced prohibition.@    The employee regrettably sustained a serious injury to his left foot, but the evidence of record supports the compensation judge=s findings that the employee=s conduct at the time of his injury constituted a prohibited act and we must, therefore, affirm the compensation judge=s denial of the claim.^[3]