4-330-587 (1998). KAYCENE HULBERT.

• Case Date: November 20, 1998
• Court: Colorado

Colorado Workers Compensation 1998. 4-330-587 (1998). KAYCENE HULBERT INDUSTRIAL CLAIM APPEALS OFFICEIN THE MATTER OF THE CLAIM OF KAYCENE HULBERT, Claimant, v. DILLON COMPANIES, INC., Employer, and SELF-INSURED, Insurer, Respondent.W. C. No. 4-330-587FINAL ORDER The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) which determined the claimant suffered a compensable occupational disease and awarded temporary disability and medical benefits. The respondents contend the ALJ erred in refusing to reduce the claimant's temporary disability benefits as provided by § 8-42-112(1)(b), C.R.S. 1998. We perceive no error, and therefore, affirm. Section 8-42-112(1)(b) provides for a fifty percent reduction of temporary disability benefits where the industrial injury "results from the employee's willful failure to obey any reasonable rule adopted by the employer for the safety of the employee." A "willful violation is one which results from deliberate intent, and not mere negligence, inadvertence, or forgetfulness. Johnson v. Denver Tramway Corp., 115 Colo. 214, 171 P.2d 410 (Colo. 1946). On appeal, it is undisputed that the claimant suffered an occupational disease from repetitive reaching and lifting required of her job as a grocery checker at King Soopers. As a result of the injury, the claimant was off work from November 30, 1996 to March 5, 1997. Effective March 5,1997, the claimant was released the return to modified work which did not require lifting over five pounds. The claimant suffered a further injurious exposure to the hazards of the occupational disease on March 9, 1997, and as a result was reinjured. Thereafter, the claimant was again temporarily totally disabled. The respondents contend that the employer instructed the claimant to adhere to her five pound lifting restriction, and that the reinjury was caused by the claimant's failure to adhere to the employer's instructions. Therefore, the respondents argued that the claimant's temporary disability benefits should be reduced in accordance with § 8-42-112(1)(b). The ALJ found that the claimant communicated the five pound lifting restriction to the employer's store manager, Mr. Pasco, who advised the claimant to work within her medical restrictions and told the claimant to request assistance to avoid exceeding her medical restrictions. However...