Opinion
W.C. No. 4-348-224
November 13, 1998
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined that the claimant suffered a compensable injury and awarded medical benefits. The respondent contends the ALJ erred in finding that the injury arose out of and in the course of the claimant's employment. We perceive no error, and therefore, affirm.
An injury "arises out of and in the course of" employment, and is therefore compensable under the Workers' Compensation Act, when it is sufficiently related to the conditions and circumstances under which the employee usually performs his or her job functions. Price v. Industrial Claim Appeals Office, 919 P.d. 207 (Colo. 1996). The "arising out of" requirement is met when the origins of the injury are work-related, and the injury is sufficiently related to the work to be considered part of the employee's services to the employer. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d. 118 (Colo.App. 1994).
The pertinent facts here are undisputed. The claimant worked as a plant manager for the employer. On May 14, 1997, the claimant was scheduled to leave the Denver International Airport (DIA) for an out-of-state business trip. The claimant left the employer's plant in her personal vehicle to travel home, where she was going to pack for the trip and review work-related material which had to be taken on the trip. On her way home, she was injured in a motor vehicle accident.
The ALJ found that the claimant's job duties required travel. The ALJ also found that the claimant's travel home on this occasion was in pursuit of the employer's business and conferred a benefit on the employer beyond her own presence at work. Further, the ALJ found that the "parties have agreed that the employment relationship continued during the travel to home." Based upon these findings, the ALJ determined that the claimant established "special circumstances" which created a causal connection between the claimant's employment and the injuries from the motor vehicle accident. Consequently, the ALJ determined that the injury arose out of and in the course of the claimant's employment.
It is true that injuries sustained by employees going to and from work are usually not compensable. Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 212 (Colo. 1967). However, there is an exception when "special circumstances" create a causal relationship between the employment and the travel beyond the sole fact of the employee's arrival at work. Monolith Portland Cement v Burak, 772 P.2d 688 (Colo. 1989); Staff Administrators Inc., v. Industrial Claim Appeals Office, 958 P.2d 509 (Colo.App. 1997), cert. granted June 29, 1998, 97SC65; but see Mountain West Fabricators v. Madden, 958 P.2d 482 (Colo.App. 1997), cert. granted June 29, 1998, 97SC856.
In Madden, the court held that "special circumstances" may be found where 1) the employee's job duties require travel, or 2) where an employee is required to be away from home for an extended period of time to attend to the employer's business, or 3) where the employee is sent on a "special errand" after first reporting to the regular place of business, or 4) where the evidence establishes that the parties have agreed that the employment relationship is to continue during the employee's travel between home and the work place. 958 P.2d at 484.
The essence of the travel status exception is that when the employer requires the claimant to travel beyond a fixed location established for the performance of her duties, the risks of such travel become risks of the employment. Martin K. Eby Construction Co. v. Industrial Commission, 151 Colo. 320 , 377 P.2d 745 (1963); Staff Administrators Inc., v. Industrial Claim Appeals Office, 958 P.2d at 511. In those circumstances, an injury during the travel is compensable as long as the claimant has not engaged in a personal deviation.
The question of whether the claimant has presented "special circumstances" sufficient to establish the required nexus is a factual determination to be resolved by the ALJ based upon the totality of circumstances. City and County of Denver School District No. 1 v. Industrial Commission, 196 Colo. 131, 581 P.2d 1162 (1978); Triad Painting Co. v. Blair, 812 P.2d. 638 (Colo. 1991). Therefore, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998; Eisnach v. Industrial Commission, 633 P.2d. 502 (Colo.App. 1981). Under the substantial evidence standard we must defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.d. 411 (Colo.App. 1995).
The respondent's arguments notwithstanding, the record amply supports the ALJ's determination that the claimant established "special circumstances" evidencing a causal connection between the employment and the motor vehicle accident. The claimant testified that once or twice a year she is required to take an out-of-town business trip for the employer. (Tr. p. 10). Further, the undisputed facts indicate that the claimant was required to leave on May 14 and be away from home to pursue the employer's business.
However, the respondent contends that the facts of this case do not fall within the travel status exception because the claimant was not required to work at home and was not required to bring her personal vehicle to work on May 14. We are not persuaded.
An injury does not have to be the result of a mandatory employment activity to be compensable. University of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953); City of Northglenn v. Eltrich, 908 P.2d 139 (Colo.App. 1995). Rather, it is sufficient if the injury arises out of a risk which is reasonably incidental to the conditions and circumstances of the particular employment. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995). This includes discretionary or "optional" activities on the part of the employee which are devoid of any duty component. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985) ; L.E.L. Construction v. Goode, 849 P.2d. 876 (Colo.App. 1992), rev'd on other grounds 867 P.2d. 875 (Colo. 1994) (claimant sustained fatal compensable injuries while traveling between the job site and the employer's main office to pick up a paycheck).
There is substantial evidence that the claimant's travel from the employer's plant to her home was incidental to the out-of-town trip on May 14, and conferred a benefit to the employer beyond the claimant's presence at work. The claimant stated that it is common for her to work at home in the evenings. (Tr. p. 14). She also stated that she was driving home to pack clothes for the trip and to finish reading some business material she had not finished the night before. (Tr. p. 14). Furthermore, the claimant stated that her supervisor gave her permission to go home on May 14 to pack and read business material.
Moreover, the claimant testified her home is on the route to DIA and that she planned to drive to a park-and-ride and then take a shuttle to DIA. (Tr. p. 20). There is no evidence the employer provided transportation from the plant to DIA. Neither is there any evidence the employer provided transportation from the claimant's home to DIA. Thus, the requirement that the claimant be at DIA on May 14 inherently extended her commute beyond travel from the plant to her home and necessitated travel beyond her normal commute either by using her own vehicle or another form of transportation. See Dynalectron Corp. v. Industrial Commission 660 P.2d 915 (Colo.App. 1982). Consequently, the claimant's travel from the plant to her home on May 14 was incidental to the out-of-town trip.
Admittedly, the claimant could have packed earlier and could have finished reading the business materials at the plant. However, the claimant testified that she worked late at the plant on May 13, later read some of the work-related materials at home and went to work early on May 14 to prepare for the trip. (Tr. pp 13-14). Based on this testimony the ALJ could reasonably infer that the employer benefitted from the claimant's packing delay and her plan to finish reading the business material at home on May 14.
However, the respondent contends that the ALJ misconstrued the evidence in finding that the "parties have agreed that the employment relationship continued during the travel to home." (Conclusions of Law 3). Assuming, arguendo, that the ALJ's finding is not supported by substantial evidence in the record, we conclude the error is harmless.
Evidence of an agreement between the claimant and the employer that the employment relationship is to continue during the employee's travel between home and the work place, is only one of the alternative categories of "special circumstances" which may establish a nexus between the employment and the claimant's injuries. Because the ALJ found that the claimant established one of the other categories of "special circumstances," it is immaterial whether the claimant also established an "agreement" that her travel from the plant to her home was part of her employment.
Finally, the respondent contends that the ALJ erroneously applied the "positional risk" analysis in finding that the injuries arose out of the claimant's employment. We reject this argument.
The "positional risk" analysis applies to circumstances when the origins of the injury are not incidental to the employment, and the only connection between the employment and the injury is the fact that the obligations of the work placed the employee in the particular place where the employee is injured by a "neutral force." In Re Questions Submitted by U.S. Court of Appeals, 759 P.2d. 17 (Colo. 1988). Consequently, it is unnecessary to apply a positional risk analysis if the cause of the injury is an event or instrumentality distinctly associated with the employment. H H Warehouse v. Vicory, 805 P.2d. 1167 (Colo.App. 1990).
There is no language in the ALJ's specific findings of fact, his Summary Order, or his oral findings which support the respondent's assertion that the ALJ applied a "positional risk analysis." See CAN-USA Construction, Inc. v. Gerber, 767 P.2d. 765 (Colo.App. 1988), rev'd on other grounds at 783 P.d. 269 (1989) (the ALJ's oral findings may be considered to interpret the ALJ's written findings). In any case, the ALJ's finding of "special circumstances" supports the award of benefits. Therefore, it is unnecessary to determine whether the claimant's injury is compensable under an alternate theory.
IT IS THEREFORE ORDERED that the ALJ's order dated December 17, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed November 13, 1998 to the following parties:
Julie A. Bates, 11378 W. Dumbarton Dr., Littleton, CO 80127
Rick Hindman, Esq., Coors Brewing Company, Inc., P.O. Box 4030, N H 200, Golden, CO 80401
Sandy Maez, CNA Insurance Companies, P.O. Box 17369, T.A., Denver, CO 80217
Kerry L. Sullivan, Esq., Sullivan and Sullivan, 1325 S. Colorado Blvd., Suite 405, Denver, CO 80222 (For the Claimant)
Thomas O. McBride, Esq., Glasman, Jaynes, McBride Musgrave, LLP, 777 E. Speer Blvd., Suite 210, Denver, CO 80203 (For the Respondent)
BY: ______________________