Opinion
W.C. No. 4-417-948
February 23, 2001
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied and dismissed the claim for workers' compensation benefits. The claimant contends the ALJ erred in concluding injuries sustained in an automobile accident are not compensable because they occurred while the claimant was commuting to work. We reverse the order and remand for further proceedings.
The ALJ found the claimant was employed as a family service worker for Mile High Child Care (Mile High), an "agency delegate" of the Head Start Program. The claimant was primarily based at two schools (Montessori and George Washington), but one day per week attended staff and training sessions at a third location, 2500 Curtis Street, where the claimant's supervisor maintained an office.
The ALJ found, on substantial evidence, that the employer required the claimant to maintain a private vehicle for travel during the workday. She also had to provide proof of insurance and a valid driver's license. The employer reimbursed the claimant for mileage expenses when traveling between Mile High offices, or when the claimant went on "family visits." However, the claimant did not request, nor did Mile High pay, mileage expenses which the claimant incurred when driving between home and work. Further, the claimant acknowledged that her "workday" did not commence until she arrived at the day's designated worksite.
On April 2, 1999, the employer required the claimant to attend a staff meeting scheduled to begin at 9:00 a.m. at the Curtis Street site. At approximately 8:30 a.m. the claimant was injured in an automobile accident while driving her private vehicle from her home to the Curtis Street meeting.
Applying principles announced in Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999), the ALJ concluded the claimant's injuries did not arise out of and in the course of employment. In support, the ALJ found the claimant's travel did not occur during working hours, nor did it occur on the employer's premises. The ALJ also found the claimant's travel was not "contemplated by the employment contract" because it did not confer a benefit on the employer, and because the travel was not singled out for special treatment as an inducement to the employment. Finally, the ALJ found the claimant was not subjected to a "special zone of danger," but was merely traveling on public streets and encountering dangers faced by the general public.
On review, the claimant contends the ALJ misapplied the principles set forth in Madden v. Mountain West Contractors, supra. The claimant first argues the employment contract contemplated the travel because the employer required her to attend the training session on April 2. The claimant's second argument is that the injury is compensable because the employer required her to drive her personal vehicle for use in the employer's business. We agree with the second argument. Therefore, we do not reach the first.
Generally, injuries sustained while traveling to and from work are not considered to have arisen out of and in the course of the employment relationship. Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2 (1967). However, special circumstances may exist which establish a causal relationship between the employment and the travel to or from the worksite. In Madden v. Mountain West Fabricators, supra, the court reiterated that resolution of the issue is fact specific, but directed the consideration of certain "variables." The court stated as follows:
These variables include but are not limited to: (1) whether the travel occurred during working hours, (2) whether the travel occurred on or off the employer's premises, (3) whether the travel was contemplated by the employment contract, and (4) whether the obligations or conditions of employment created a "zone of special danger" out of which the injury arose.
The Madden court recognized the question of whether the travel was contemplated by the employment contract has the "potential to encompass many situations." 977 P.2d at 864. Generally, these situations involve the following classifications: (a) the particular journey was assigned or directed by the employer, (b) the travel was at the express or implied request of the employer and conferred a benefit beyond the employee's arrival at work, and (c) the travel was singled out for special treatment as an inducement to employment. The common element in these types of cases is that the travel is a substantial part of the service to the employer. Finally, if the claimant establishes only one of the four "variables," recovery depends upon whether the evidence supporting that variable demonstrates a causal connection between the employment and the injury such that the travel to and from the work arises out of and in the course of employment. 977 P.2d at 865.
Here, we conclude the ALJ's findings of fact compel the conclusion that the claimant's travel was "contemplated by the employment contract" and bore a sufficient causal connection to the employment to warrant a finding of compensability as a matter of law. Section 8-43-301(8), C.R.S. 2000 (panel may correct an order where the findings of fact do not support the order, or where the denial of benefits is not supported by applicable law). In Whale Communications v. Osborn, 759 P.2d 848 (Colo.App. 1988), the court awarded death benefits in a case where the decedent was killed when driving her personal vehicle from her office to her home. The court held the death was compensable because the employer required the claimant to use the vehicle to meet clients during the workday. The court reasoned "the requirement that employee bring her automobile to work for use in pursuing employer's business conferred an added benefit on employer beyond the mere fact" of arrival at work, and established "special circumstances" demonstrating a causal connection between the decedent's work and her death. The court stated the rationale for the decision was that the decedent's travel became "part of the job since it [was] a service to the employer to convey to the premises a major piece of equipment devoted to the employer's purposes."
In this case, the ALJ found the employer required the claimant to bring her personal motor vehicle to work for use in conducting the employer's business. Thus, regardless of whether the employer compensated the travel to and from work as an inducement to employment, the contract of employment required the claimant to transport her personal vehicle to the employer's premises. Further, the employer received a benefit beyond the claimant's mere arrival at work because the employer was not required to maintain its own fleet of vehicles. Finally, the fact that the claimant's workday did not officially begin until she arrived at the worksite does not negate the fact that the employment contract made the claimant's vehicle a mandatory part of the work environment. See Capra v. Tucker, 857 P.2d 1346 (Colo.App. 1993).
The result we reach here is fully consistent with Madden v. Mountain West Fabricators, supra. The Madden court expressly recognizes distinct categories of contract cases involving travel at the express or implied request of the employer, and travel which is singled out for special treatment as an inducement to employment. This case falls in the former category. Moreover, in Madden, the court was careful to note the employer did not require that employees "use their own vehicles after arriving" at the worksite. 977 P.2d at 861. In light of this disposition, we need not reach the claimant's other argument.
IT IS THEREFORE ORDERED that the ALJ's order dated May 11, 2000, is reversed, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
Copies of this decision were mailed February 23, 2001 to the following parties:
Karen McDade, 2194 S. Racine Way, Unit Z-102, Aurora, CO 80014
Mile High Child Care, 1780 Marion St., Denver, CO 80218-1121
Michael J. Steiner, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
Heidi J. Hugdahl, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Claimant)
Craig R. Anderson, Esq., 101 N. Tejon, #410, Colorado Springs, CO 80903
BY: A. Pendroy