Opinion
W.C. No. 4-799-814.
November 1, 2010.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Stuber (ALJ) dated June 29, 2010, that found the claim compensable and ordered the insurer to provide certain benefits. We affirm.
The claimant worked for the employer as a correctional officer at the Walsenburg Correctional Facility. The claimant was in training to respond to disturbances at the facility as a SORT Team Member. The claimant lived in Pueblo. On October 28, 2008 the claimant's immediate supervisor called the claimant and instructed him to "gear up" and appear to work. The claimant was unable to take his normal car pool van and the claimant's wife was unable to transport him to work. The claimant's supervisor agreed to pick the claimant up at a gas station to ride to work. While the claimant was riding in his supervisor's car traveling to the correctional facility a deer struck the passenger side of the vehicle causing an accident that injured the claimant. The ALJ determined that the claimant had proven by a preponderance of the evidence that he suffered an accidental injury on October 28, 2008, arising out of and in the course of his employment.
On appeal the respondents argue the ALJ erred in failing to conclude that the claimant was injured while he was simply commuting to work. Therefore, the respondents contend that the ALJ misapplied the law to the facts when he determined that the claimant's injury was a compensable injury. 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 merely sustained injuries while going to work and therefore the accident was not compensable.
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.; 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).
The respondents draw our attention to Sanchez, v. Accord Human Resources, W. C. Nos. 4-551-435, 4-552-982 (May 19, 2003). In Sanchez the claimants worked for a construction company and were typically called and told where to report for work. The claimants had to travel to and from the assigned job site on their own without any provision of transportation, reimbursement of travel costs or car pooling arrangements by the employer. Neither were the claimants paid for time spent traveling to and from the job site. On the day of the accident the claimants drove to the job site in a personal vehicle and while returning home after work the claimants suffered severe injuries in a motor vehicle accident. The Panel affirmed the ALJ's determination that the claimants failed to prove they suffered compensable injuries and, therefore, denied and dismissed their claims for workers' compensation benefits. The Panel concluded that the claimants had failed to present "special circumstances" sufficient to establish the required nexus 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).
In contrast, here the ALJ made the following relevant determinations. The claimant had demonstrated an exception to the usual "going to and coming from work" rule. The third Madden variable of whether the travel was contemplated by the employment contract was implicated in the case. The claimant had to comply with the instructions of his supervisor to meet and ride with the supervisor resulting from the sudden change in the claimant's schedule. The particular travel was assigned or directed by the employer at the employer's express request. If this had been the claimant's normal commute to a regularly scheduled shift, he would have taken the vanpool, which he customarily used for the commute. Because he was required to ride with the supervisor, he had proven a nexus between work and the accidental injury.
Here, the ALJ performed the kind of fact-specific analysis mandated by the court in Madden and there is substantial evidence supporting the ALJ's order. We cannot say as a matter of law that the circumstances here where, on the day of the accident, the claimant was being driven to the correctional facility by his supervisor at a high rate of speed of approximately 95 miles per hour, did not create a special circumstance warranting recovery. In our view, substantial evidence supports the ALJ's conclusion that there was a causal connection between the employment and the injury. Therefore, in our opinion, the ALJ did not err in concluding that the claimant sustained his burden to prove that the injury arose out of and in the course of his employment.
IT IS THEREFORE ORDERED that the ALJ's order dated June 29, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
DANIEL S. MILLER II, PUEBLO, CO, (Claimant).
CORRECTIONS CORP OF AMERICA, Attn: JAY BROWN, 10 BURTON HILLS BLVD., NASHVILLE, TN, (Employer).
NEW HAMPSHIRE INSURANCE COMPANY, Attn: CLAIMS REPRESENTATIVE-POLLY LITTLE, C/O: CHARTIS, SHAWNEE MISSION, KS, (Insurer).
MCDIVITT LAW FIRM, PC, Attn: MATTHEW C. GIZZI, ESQ., COLORADO SPRINGS, CO, (For Claimant).
TREECE, ALFREY, MUSAT BOSWORTH, PC, Attn: CHRISTOPHER P. AHMANN, ESQ., DENVER, CO, (For Respondents).
CORRECTIONS CORP OF AMERICA, 304 RAY SANDOVAL RD, WALSENBURG, CO, (Other Party).