Opinion
W.C. No. 4-701-193.
August 24 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) dated March 13, 2007 that denied and dismissed his claim for benefits. We affirm.
Several of the ALJ's findings of fact are summarized as follows. The claimant worked as a journeyman service technician. The employer paid him an hourly wage, but only from the time he arrived at the job site until he finished and left his last job site for the day. The claimant received work assignments at his residence or, less frequently, from a dispatcher who would call the claimant on his cell phone. The claimant often worked near his residence. He usually went once a week to the employer's office to turn in job tickets and pick up a paycheck.
The employer provided the claimant with a company vehicle. The employer provided fuel, maintenance, and insurance for the vehicle. The claimant was not to use the vehicle for personal use, but the employer allowed the claimant to drive the vehicle home each night after work. The claimant kept supplies and equipment in the vehicle and sometimes stored testing equipment in his residence at night during periods of freezing temperatures. The ALJ described the employer's practice of allowing employees to drive company vehicles home at night as being of "very little benefit" to the employer. Findings of Fact, Conclusions of Law, and Order (Order) at 2 (unpaginated), ¶ 6.
The claimant sustained injuries from a motor vehicle accident. He left his only job assignment for the day and drove directly to his weekly bowling event. He left the bowling alley later that evening and was driving home when he was hurt in the accident. The ALJ determined that the claimant was not in travel status, but was commuting home following work after what the ALJ described as a "personal deviation." Order at 3 (unpaginated), ¶ 9. The ALJ therefore determined that the claimant's injuries did not arise out of and in the course of his employment.
On appeal the claimant contends that the ALJ erred in not concluding that he was in travel status at the time he was involved in the motor vehicle accident. Specifically, he argues that the evidentiary record here compels the conclusion that his motor vehicle accident was compensable. Although it is certainly true that the record contains ample evidence from which the ALJ might have concluded that the claimant was in travel status at the time of his accident, the question remains essentially a factual one. The standard of review applicable to factual questions is, of course, deferential. A factual issue may become one of law only if reasonable minds can draw but one conclusion from the undisputed facts. See Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993). Although the claimant seeks to characterize the question on appeal here as exclusively one of law, it is largely factual, turning on the ALJ's application of the facts of this case to the legal standard controlling the principle of "travel status." Under the circumstances of this case we cannot state that the record compelled the ALJ as a matter of law to reach the conclusion that the claimant was in travel status.
An injury arises out of and in the course of employment when there is a sufficient "nexus" between the activity which caused the injury and the usual circumstances of the job, so that the activity maybe considered an incident of employment. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). The general rule is that injuries sustained "going to and coming from" work are not compensable. Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2 (1967); Perry v. Crawford Co., 677 P.2d 416 (Colo.App. 1983). 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. Madden v. Mountain West Fabricators, 977 P.2d 861, 863 (Colo. 1999); Staff Administrators Inc., v. Reynolds, 977 P.2d 866 (Colo. 1999); Monolith Portland Cement v Burak, 772 P.2d 688 (Colo. 1989).
Whether such special circumstances exist is a question of fact for resolution by the ALJ and the determination cannot be limited to or defined by a predetermined list of acceptable facts and circumstances. Madden v. Mountain West Fabricators, supra. In Madden the court concluded that "special circumstances" may be found where the employment contract contemplates the claimant's travel, or the employer singles out the employee's travel for special treatment as an inducement to employment by either providing transportation or paying the cost of the employee's travel. Madden v. Mountain West Fabricators supra; Staff Administrators Inc., v. Reynolds, supra, (special circumstances found where employer provided a carpool to transport employees to the job site). Special circumstances may also exist where the travel is at the implied or express direction of the employer and the employer receives some special benefit from the travel beyond the claimant's arrival at work. National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 1259 (Colo.App. 1992); Monolith Portland Cement v. Burak, 772 P.2d 688 (Colo.App. 1989); Walsh v. Industrial Commission, 34 Colo. App. 371, 527 P.2d 1180 (1974) (the claimant suffered a compensable injury when she slipped and fell on ice while trying to comply with the employer's directive that she get to work by any means).
In Madden, the supreme court articulated four factors which, although not inclusive, provide a general framework for analyzing whether the facts in a case support an award of benefits for injuries sustained by a claimant while traveling:
(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.
Madden, 977 P.2d at 864. The court observed that the sufficiency of any one of these variables to support an award "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 work arises out of and in the course of employment." Id. at 865. See also, Sturgeon Electric, 129 P.3d at 1059 ( "[T]he Madden court cautioned that whether any one of the factors is sufficient . . . to create a special circumstance warranting recovery depends upon whether the evidence supporting that factor demonstrates a causal connection between the employment and the injury . . .")
Because the issue is factually specific, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). Under this 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).
In support of his argument that he was in travel status, the claimant contends that the evidence that the employer provided a company van and derived a benefit from that fact compelled the conclusion that there were special circumstances bringing the travel within the scope of the claimant's employment. It is undisputed that the claimant was driving a company van at the time of his accident, and that he was permitted to take it home after work and drive it to the job site in the morning. However, the ALJ was unpersuaded that these facts established the necessary causal connection between the job and the travel to work.
It is true that the Madden court stated that one example of travel contemplated by the employment contract occurs where the "travel is singled out for special treatment as an inducement to employment, such as when the employer provides transportation or pays the cost of the employee's travel to and from work." Madden v. Mountain West Fabricators, 977 P.2d at 865. However, the question remains a factual one, and we are unaware of any authority that permitting an employee to drive a company vehicle compels the conclusion that the employee is in travel status on the way to and from work. The critical question in determining whether travel is contemplated by the employment contract remains whether the evidence establishes that the travel was "a substantial part of the service to the employer." Madden v. Mountain West Fabricators, 977 P.2d at 865. Here, the ALJ was not persuaded that the claimant's electing to drive the company vehicle home following work established that the travel to and from the job site was a substantial part of the claimant's job.
The ALJ's determination that the provision of a company vehicle did not establish the necessary causal connection between the job and the travel is supported by the record and reasonable inferences from it. As the ALJ noted, there was evidence that the claimant was permitted to drive the van, but was not required to do so, and that not all of the employees elected to take company vehicles home at night. Tr. at 93, 118. Moreover, the ALJ's finding that the employer derived little benefit from the claimant driving the company vehicle was amply supported by the employer's testimony, which was that the employer derived "no benefit" and that the arrangement was merely one for the convenience of the employees. Tr. at 123. Indeed, we note that the employer's witness testified that, on balance, it was more of a benefit to the employer when its employees drove their personal vehicles to the business and then took a company vehicle to the job site. Tr. at 122. In our opinion the ALJ performed the kind of fact-specific analysis mandated by the court in Madden. It is true that the claimant is able to point to evidence supporting his position. However, the existence in the record of conflicting testimony or of evidence that would support a contrary result does not provide a basis for setting aside the ALJ's order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999) (the existence of conflicting evidence does not lessen the import of substantial evidence in support of a finding). The claimant's arguments notwithstanding, in our view there is substantial evidence supporting the ALJ's order. Because the ALJ's factual findings are supported by substantial evidence and he correctly applied the relevant legal standard, we are not persuaded to disturb his order.
IT IS THEREFORE ORDERED that the ALJ's order dated March 13, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Curt Kriksciun
OLSON PLUMBING HEATING, Attn: DAVE ELLIOT, COLORADO SPRINGS, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., E LOWRY BLVD, DENVER, CO, (Insurer).
WINSTON LAW FIRM, P.C., Attn: JOSEPH R. WINSTON, ESQ., COLORADO SPRINGS, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: LISA A SIMONS, ESQ., DENVER, CO, (For Respondents).