Opinion
W.C. No. 4-245-583
May 14, 1996
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which denied and dismissed his claim for workers' compensation. The claimant contends that the ALJ erred in determining that the claimant did not suffer injuries arising out of and in the course of the claimant's employment. We disagree, and therefore, affirm.
To be compensable, the claimant's injuries must "arise out of and in the course" of employment. Section 8-41-301(1)(b), C.R.S. (1995 Cum. Supp.). An activity "arises out of" employment if it is sufficiently interrelated to the conditions and circumstances under which the employee usually performs his or her job functions, that the activity may reasonably be characterized as an incident of the employment. City of Northglenn v. Eltrich, 908 P.2d 139 (Colo.App. 1995), cert. granted, December 18, 1995.
The determination of whether the claimant has shown a sufficient interrelationship between the employment and the activities which resulted in the injuries is generally a question of fact for resolution by the ALJ. See L.E.L. Construction v. Goode, 849 P.2d 876 (Colo.App. 1992), rev'd. on other grounds, L.E.L. Construction v. Goode, 867 P.2d 875 (Colo. 1994). Consequently, we must uphold the ALJ's factual determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).
Here, the ALJ found that the employer provided the claimant with a company vehicle to facilitate the travel requirements of his employment. When not in use, the claimant parked the company vehicle in his driveway. On Saturday, August 2, 1994, the claimant planned to move the vehicle from the left side of his driveway to the right side of his driveway, so that he could access his personal vehicle and make room for guest vehicles. As he was moving the company vehicle, he was struck from behind by another vehicle and injured.
The ALJ found that the claimant gave a similar description of the accident to his no-fault insurance carrier. Further, the ALJ found that in his application for no-fault insurance benefits, the claimant reported that his injuries were not incurred "on the job."
Based upon these findings the ALJ determined that the claimant failed to sustain his burden to prove that he suffered injuries "arising out of" and "in the course" of his employment. In so doing, the ALJ expressly recognized the claimant's argument that his activities were work related because, immediately preceding the accident, he rearranged some paperwork in the back seat of the company vehicle. The claimant also asserted that the employer benefitted from the fact that he parked the company vehicle on his property to safeguard it from vandalism, and therefore, argued that his actions served a "dual" benefit to the employer and himself. However, the ALJ was not persuaded.
The ALJ found that the alleged benefit to the employer by keeping the vehicle off the street was "speculative and marginal." Furthermore, the ALJ determined that even if there was a "slim benefit" to the employer in having the company vehicle parked on the claimant's property, the specific activity the claimant was performing at the time of the accident was purely personal. In fact, the ALJ determined that the only connection between the accident and the employment was the fact that the accident occurred in a company vehicle.
On appeal, the claimant renews the arguments he made before the ALJ. In support, the claimant cites cases in which injuries sustained during an activity which is serves a "dual" benefit to the employee and the employer are compensable. We do not dispute the claimant's interpretation of the law. See Deterts v. Times Publishing Company, 38 Colo. App. 48, 552 P.2d 1038 (Colo.App. 1976) (storing bicycle at newspaper office benefitted the newspaper carrier and the newspaper and thus, the carrier's injury while retrieving the bicycle was compensable); Bob Hagestad Porsche Audi, Inc v. Industrial Commission, 503 P.2d 629 (Colo.App. 1972) (not selected for publication) (employee taking employer's vehicle for road test served a dual benefit to employer and employee and thus, employee's injury while driving the car after a social engagement was compensable). However, the determination of whether the claimant's activities served a "dual purpose" is itself a question of fact. Dunavin v. Monarch Recreation Corporation, 812 P.2d 719 (Colo.App. 1991).
Here, the ALJ has explicitly determined that the claimant was acting for his sole benefit in moving the company vehicle on the date of the accident. Because the ALJ's finding is supported by the undisputed facts and substantial evidence in the record, it must be upheld. Accordingly, we may not interfere with the ALJ's determination that unlike Deterts and Bob Hagestad Porsche Audi Inc., this claim does not involve injuries suffered while the claimant was engaged in a "dual purpose" activity. Compare Busch v. Major Medical Supply, W.C. No. 4-221-077, October 25, 1995 (employee driving company vehicle to his home and parking it at his home to safeguard the vehicle from vandalism at the employer's premises was a dual benefit to the employee and employer, and injuries while driving vehicle back to employer's premises were compensable).
Moreover, the ALJ's findings support her conclusion that the claimant failed to sustain his burden to prove that his injuries were the result of an activity "sufficiently interrelated to the conditions and circumstances under which [the claimant] usually performs his job functions that the activity reasonably may be characterized as incident of employment." Therefore, the ALJ did not err in dismissing the claim. Section 8-41-301(1); City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985).
IT IS THEREFORE ORDERED that the ALJ's order dated September 21, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona HalseyNOTICE
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. (1995 Cum. Supp.).
Copies of this decision were mailed May 14, 1996 to the following parties:
Donald R.C. Smith, 865 Vondel Park Dr., Colorado Springs, CO 80907
Harrison School District #2, 1060 Harrison Rd., Colorado Springs, CO 80906-3543
TIG Ins. Co., Attn: Lynda S. Jackson, P.O. Box 17005, Denver, CO 80217
Gordon J. Heuser, Esq., 3515 N. Chestnut St., Colorado Springs, CO 80907 (For the Claimant)
Fred Ritsema, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
BY: _______________________