Opinion
W.C. No. 4-285-328
March 28, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Martinez (ALJ), which denied her claim for benefits because the injury did not arise out of and in the course of employment. We affirm.
The ALJ found that the claimant was a ski instructor for Vail Associates, Inc. (Vail). The claimant fractured her right ankle while skiing on December 21, 1995. The injury occurred on an expert slope known as Kangaroo Cornice, obviously located on Vail's premises.
The ALJ found that the claimant reported to work at approximately 8 a.m., but was not scheduled to teach any ski lessons until 1 p.m. At approximately 10 a.m., the claimant was "released to go to mid-Vail" to see if there were any "walk-in lessons." No lessons were available so the claimant decided to ski. While skiing, she located her supervisor, Mr. Webb, and asked him if he wanted to "take a run with her."
The claimant and Mr. Webb rode the ski lift together and discussed the claimant's difficulty in passing a test for level three ski instructor accreditation. However, the ALJ found that Vail does not require instructors to have this accreditation, and there are "ski school supervisors who are not . . . certified." The claimant was injured while skiing down Kangaroo Cornice with her supervisor.
Relying principally on § 8-40-201(8), C.R.S. (1996 Cum. Supp.), and § 8-40-301(1), C.R.S. (1996 Cum. Supp.), the ALJ determined that the claimant was engaged in "free recreational skiing" at the time of her injury. The ALJ specifically found that the claimant was not engaged in an employer sponsored ski clinic, nor was she satisfying any training requirement established by Vail. In support of this conclusion, the ALJ cited Vail's manual which indicates that Vail does not consider "free skiing" to fall with in the ambit of workers' compensation, and warns that "skiing with a supervisor is not considered a clinic, unless stated in advance by the supervisor that it will be a clinic."
On review, the claimant contends that the ALJ made insufficient findings of fact to support his denial of the claim, and failed to apply the pertinent criteria set forth in Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996). The claimant argues that she was engaged in employer-mandated training, and that application of Price would result in a finding of compensability. As a corollary, the claimant argues that the ALJ erred in applying § 8-40-201(8) and § 8-40-301(1). We perceive no error.
Initially, we note that § 8-40-201(8) and § 8-40-301(1) exclude from coverage a claimant who is injured while participating in a "recreational activity" if the claimant is not performing any duties of employment. This exclusion applies even if the activity is "sponsored" by the employer. However, as a practical matter, these statutes do little more than require ALJ's to apply the relevant common law tests to determine whether the injury was sufficiently connected to the claimant's employment. See Karlin v. Conard, 876 P.2d 64 (Colo.App. 1993); Maxfield v. Vail Associates, Inc., W.C. No. 4-245-217 (March 3, 1995).
Generally, an activity arises out of and in the course of employment if it is "sufficiently interrelated to the conditions and the circumstances under which the employee usually performs his job functions that the activity may reasonably be characterized as an incident of employment, even though the activity itself is not a strict obligation of employment and does not confer a strict benefit on the employer." City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). The question of whether there is a sufficient "nexus" between the employee's activity at the time of the injury and the circumstances of the employment is 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, 867 P.2d 875 (Colo. 1994).
As the claimant argues, if the employer mandates that a claimant engage in training as a job function, injuries sustained during the training are compensable. Keystone International, Inc. v. Gale, 33 Colo. App. 216, 518 P.2d 296 (1973); Koski v. Winter Park Resort, W.C. No. 2-236-953 (April 12, 1996). However, off duty training which is mandated or encouraged by the employer may or may not be compensable depending on the circumstances. It was held in Price v. Industrial Claim Appeals Office, supra, that the relevant factors include the following:
"(1) Whether the injury occurred during working hours; (2) whether the injury occurred on the employer's premises; (3) whether the employer initiated the employee's exercise program; (4) whether the employer exerted any control or direction over the employee's exercise program; and (5) whether the employer stood to benefit from the employee's exercise program."
The greatest weight must be given to the first two factors because they are "strong indicators" of whether the injury rose out of and in the course of employment. 919 P.2d at 211.
Because these questions are factual in nature, we must uphold the ALJ's pertinent findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). Consequently, 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.2d 411 (Colo.App. 1995).
The claimant's argument notwithstanding, the evidence supports the ALJ's determination that the claimant's injury was the result of non-compensable recreational skiing rather than compensable employer-mandated training. It is certainly true, as the claimant points out, that her injury occurred on Vail's premises. However, in this case the "premises" criterion is not persuasive, considering the ALJ's finding that the claimant was skiing on her own volition, and on an expert slope. The employer's manual indicates that, when going to or from a work assignment, Vail instructors are to use "beginner or intermediate" routes. Presumably, this reduces the risk to Vail's employees and reduces compensation costs. Further, the very nature of Vail's premises renders it subject to both business-related and personal recreational activity. Cf. Dunavin v. Monarch Recreation Corp., 812 P.2d 719 (Colo.App. 1991).
Further, the time of the injury itself does not constitute a compelling factor in favor of a finding of compensability. The claimant was not required to be skiing at the time she was injured, and the employer had not directed her to do so. Further, there is no evidence that the employer was paying the claimant at the time she was injured. To the contrary, the claimant's status is best described as being "on call" to provide instruction should a customer have become available. However, this status is not in and of itself sufficient to establish a compensable injury. See Varsity Contractors v. Baca, 709 P.2d 55 (Colo.App. 1985).
Neither are we convinced that the employer's involvement in the claimant's training was so compelling that the injury is compensable under Price v. Industrial Claim Appeals Office, supra. Although there is certainly evidence that the employer encouraged the claimant to participate in professional development, this evidence did not compel the ALJ to find the claimant was engaged in training activities at the time of her injury. Rather, the claimant initiated the particular activity which resulted in her injury, and the claimant's supervisor did not play any role in the claimant's decision to ski down Kangaroo Cornice. Neither did the supervisor indicate to the claimant that further training was required, and the evidence supports the finding that Vail did not require the claimant to obtain level three accreditation. Moreover, the mere fact that the supervisor and the claimant discussed the claimant's professional qualifications while riding the ski lift does not compel a finding of compensability. See Wilson v. Scientific Software-Intercomp, 738 P.2d 400 (Colo.App. 1987).
We reject the claimant's arguments that the ALJ was required to "honor" the claimant's understanding of the training manual, and that the ALJ erred in considering the training manual. Contrary to the claimant's assertion, the ALJ did not treat the manual as defining the extent of the respondent's liability for purposes of workers' compensation. To the contrary, the ALJ explicitly recognized that the manual is not the equivalent of "legislation." However, the ALJ correctly observed that the manual is relevant to establishing the parameters of the claimant's job duties, as well as those activities which the employer considered to be outside the scope of the claimant's employment. See Bill Lawley Ford v. Miller, 672 P.2d 1031 (Colo.App. 1983).
Moreover, it was for the ALJ, not the claimant, to determine the weight and inferences to be drawn from the manual. We perceive no error in the ALJ's analysis concerning the relevance of the manual.
The claimant also argues that the ALJ's findings of fact are insufficient to support appellate review. However, the ALJ's findings are sufficient to indicate the basis of the order, and the evidence which he considered to be determinative of the issues involved. Therefore, we perceive no deficiency in the ALJ's findings. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
Insofar as the claimant argues that the ALJ's findings are unsupported by the evidence, we find no error. We understand the ALJ's finding that the claimant was "released" to go to mid-Vail as a reflection of his determination that the claimant was no longer needed at the base of the mountain, and was to check at mid-Vail to see if any customers were available there. That finding is supported by the record.
The ALJ's findings concerning whether or not the claimant was compelled to engage in training are fully supported by substantial, albeit conflicting evidence. We may not substitute our judgment for that of the ALJ concerning the weight to be accorded the evidence. Metro Moving Storage Co. v. Gussert, supra.
Insofar as the claimant makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated September 20, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona HalseyNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. (1996 Cum. Supp.).
Copies of this decision were mailed March 28, 1997 to the following parties:
Leah Angers, P.O. Box 5024, Vail, CO 81658
Greg Spaight, Manager, Workers' Compensation, Vail Associates, Inc., P.O. Box 7, Vail, CO 81658
Jeffrey S. Auxier, Esq., P.O. Box 1391, Vail, CO 81658 (For Claimant)
Ronald C. Jaynes, Esq., 777 E. Speer Blvd., #210, Denver, CO 80203 (For Respondent)
By: _______________________________