Opinion
W.C. No. 4-529-373.
June 9, 2003.
FINAL ORDER
The respondents seek review of orders of Administrative Law Judge Stuber (ALJ) which determined the claimant suffered compensable injuries and required the respondents to provide temporary disability and disfigurement benefits. We affirm.
The ALJ's pertinent findings may be summarized as follows. The claimant was employed as a car salesman. The claimant's normal job duties included driving vehicles to the homes of potential purchasers for them to test drive. In December 2000 the claimant talked to his wife about buying a particular Mercury Sable which was scheduled to be traded in to the employer's dealership. The claimant shared this interest with a coworker, Daryl Huschka Jr (Huschka).
On the morning of January 16, 2001, the claimant took his personal vehicle to an auto shop for repairs and requested Huschka give him a ride home at the end of the workday. However, the Mercury Sable was traded in that day and the claimant obtained the employer's permission to drive the vehicle home. While driving the Mercury Sable to his home, the claimant suffered serious injuries in a motor vehicle accident.
Based upon these facts, the ALJ determined the claimant was driving the Mercury Sable home to show his wife as a potential purchaser and not because he thought his personal car was unavailable. Further, the ALJ determined that even though the claimant had a role as purchaser of the Mercury Sable, his delivery of the Mercury Sable to his wife was part of his job as a salesman. The ALJ also found that the employer stood to earn a profit from the claimant's sale of the Mercury Sable. Therefore, the ALJ determined the claimant's travel to his home conferred a benefit on the employer beyond his return home. Under these circumstances, the ALJ issued an order dated July 16, 2002, which found the claimant's injuries arose out of and in the course of employment. On December 10, 2002, the ALJ ordered the respondents to pay temporary total disability and disfigurement benefits awarded on account of the injury. The respondents timely appealed.
I.
On review the respondents contend the ALJ erred in finding the claimant's injuries are compensable. We perceive no reversible error.
An injury "arises out of and in the course of" employment, and is therefore compensable under the Workers' Compensation Act (Act), when it occurs during an activity which is sufficiently connected 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). 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 to or departure from work. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Monolith Portland Cement v. Burak, 772 P.2d 688 (Colo. 1989). In Madden the court determined that a "number of variables" must be considered in determining whether the alleged special circumstances warrant recovery under the Act. 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. Id. at 864. In discussing the contract element, the Madden court noted that it has permitted recovery in circumstances where the "travel confers a benefit on the employer beyond the sole fact of the employee's arrival of work." Id. At 864.
The question of whether the claimant 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. Staff Administrators Inc., v. Reynolds, 977 P.2d 866 (Colo. 1999); City and County of Denver School District No. 1 v. Industrial Commission, 196 Colo. 131, 581 P.2d 1162 (1978). The ALJ's factual determinations are binding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998).
Initially, we agree with the respondents' contention that the ALJ's reliance on Capital Chevrolet Co. v. Industrial Commission, 159 Colo. 156, 410 P.2d 518 (Colo. 1966) is misplaced. The claimant in Capital, was a car salesman who suffered fatal injuries in a motor vehicle accident while delivering a vehicle he sold to his father. The claimant's death was found compensable because the employment necessitated the travel. However, Capital does not involve travel going to or coming from employment and, thus, it is factually distinguishable from the circumstances presented here. However, the ALJ's remaining findings support the award of benefits and, therefore, the ALJ's erroneous reliance on Capital is harmless and will be disregarded. Section 8-43-410, C.R.S. 2002; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988).
It is undisputed the claimant's job was to sell cars. As found by the ALJ, the record contains evidence that the claimant's job duties included driving cars to the homes of potential customers to test drive. (Tr. pp 16). Although the claimant's job did not require him to buy any cars from the employer, the record contains evidence the claimant previous bought 6 vehicles from the employer and the employer profited from the sale of cars to employees. (Tr. pp. 16, 28, 49). In all but one case, the claimant drove the vehicle home for his wife to test drive before the purchase.
The evidence is subject to conflicting inferences concerning the reason the claimant requested permission to drive the Mercury Sable home on January 16. However, there is substantial evidence that the claimant requested the employer's permission to take the Mercury Sable home because he was interested in buying it and wanted his wife to test drive the vehicle. (Tr. pp. 13, 14). Conversely, if the claimant had simply required a ride home he could have called his wife or followed through with the earlier request that Huschka drive him home. (Tr. pp 17-18, 36).
We may not substitute our judgment for that of the ALJ concerning the credibility of the witnesses. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000) ; Gelco Courier v. Industrial Commission, 702 P.2d 295 (Colo.App. 1985). Consequently, we must uphold the ALJ's finding that the claimant was traveling in the Mercury Sable at the time of the industrial accident for the purpose of showing the car to a potential buyer. Furthermore, the ALJ's findings support the conclusion the claimant's travel conferred a potential benefit to the employer beyond the claimant's return home. Therefore, the ALJ did not err in finding the claimant's injuries arose out of and in the course of employment.
However, the respondents point out the claimant's admission that he was not "conducting any company business" on his way home. (Tr. p. 32). The respondents arguments notwithstanding, it is unclear whether the claimant meant he did not stop to conduct any other form of company business during the drive home on January 16 or whether he did not consider driving the Sable home to be company business. Therefore, we reject the respondents' contention that this testimony precluded the ALJ from finding the claimant's injuries arose out of his employment.
Concerning the respondents' further arguments we note that injuries suffered by an employee while performing acts for the mutual benefit of the employer and the employee are usually compensable under the "dual purpose" doctrine. Deterts v. Times Publishing Co., 38 Colo. App. 48, 552 P.2d 1033 (1976); Colorado Civil Air Patrol v. Hagans, 662 P.2d 194 (Colo.App. 1983). For example in Bob Hagestad Porsche Audi Inc. v. Industrial Commission, 503 P.2d 628 (Colo.App. 1972) (not selected for publication) the service manager for an automobile dealer suffered compensable injuries while driving a customer's vehicle home from a friend's home. The service manager took the vehicle home from work to road test it under actual traffic conditions. Because road testing vehicles was a duty within the service manager's scope of employment, the court held that the service manager conferred a benefit on the employer by driving the vehicle at the time of the accident. Therefore, the service manager's injuries were held to be compensable under the "dual purpose" doctrine.
In this case, the record supports the ALJ's finding that the claimant's travel in the Mercury Sable was work-related and conferred a benefit on the employer beyond the claimant's arrival home. Accordingly, it is immaterial that the travel was personal in that it allowed the claimant to get home to attend a birthday party.
II.
For his part, the claimant seeks an award of costs and attorney fees. We deny the request.
Section 8-43-301(14), C.R.S. 2002 states that attorney fees may be awarded against an attorney who submits a petition to review or brief in support of a petition "which is not well grounded in fact and warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law." Although we do not agree with the respondents' arguments, we do not consider the petition to review and appellate brief to be so lacking in merit that they it may be classified as not well grounded in fact or law. Therefore, we decline to award attorney fees. See BCW Enterprises, Ltd. v. Industrial Claim Appeals Office, 964 P.2d 533 (Colo.App. 1997); Brandon v. Sterling Colorado Beef Co., 827 P.2d 559 (Colo.App. 1991) (resort to judicial review is not considered frivolous or in bad faith as long as there is a reasonable basis for party to challenge the ALJ's order).
IT IS THEREFORE ORDERED that the ALJ's orders dated July 16, 2002 and December 10, 2002, are affirmed.
IT IS FURTHER ORDERED that the claimant's request for an award of costs and attorney fees is denied.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed June 9, 2003 to the following parties:
Antony Zielinko, 3655 E. U.S. Highway 50, Salida, CO 81201
Susie Enck, John Marzolf Chevrolet, 110 N. Santa Fe, Pueblo, CO 81003
Sundee Hahn, Western Guaranty Fund Services, 1720 S. Bellaire St., #408, Denver, CO 80222
M. Stuart Anderson, Esq., 1604 H St., #200, Salida, CO 81201 (For Claimant)
Christopher Condit, Esq., 625 E. 16th Ave., #100, Denver, CO 80203 (For Respondents)
BY: A. Hurtado