Opinion
W.C. No. 4-414-586
October 19, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Coughlin (ALJ), which determined the claimant failed to prove a compensable injury and, therefore, denied and dismissed the claim for workers' compensation benefits. We affirm the order in part, set it aside in part and remand it for consideration of an intoxication penalty.
In January 1999, the claimant was hired by the Pacesetter Corporation (Pacesetter) to sell home improvement products. On February 12, 1999, the claimant, a co-worker and an assistant sales manager were sent to Laramie, Wyoming to sell Pacesetter products. Pacesetter paid for the claimant's hotel room. On the evening of February 14, 1999, the claimant sustained injuries in a one car rollover automobile accident.
At hearing the claimant argued the respondents admitted the issue of compensability in a General Admission of Liability dated March 29, 1999, which admitted liability for medical and temporary total disability benefits commencing February 15, 1999. Under these circumstances, the claimant argued it was the respondents burden to prove the injury was not compensable. Alternatively, the claimant argued that the injuries occurred during the course and scope of his employment as a "traveling employee."
The respondents conceded that a General Admission of Liability was created which contains a certificate of mailing dated March 29, 1999. However, the respondents alleged that the General Admission was never "filed" because it is not contained in the file maintained by the "Division of Workers' Compensation" (Division). In any case, the respondents argued that the admission was ineffective because on April 1, 1999, they sent the claimant a letter which notified him that the admission was created and mailed "in error," that it "should not have been filed," and that it was "withdrawn." Furthermore, the respondents argued the claimant's injuries are not compensable because they occurred during a personal deviation. Alternatively, the respondents requested penalties under former § 8-42-112(1)(c), C.R.S. 1998 (repealed and reenacted 1999 Colo. Sess. Laws ch. 174, § 8-42-112.5 at 580 effective for injuries occurring on or after July 1, 1999), on grounds the injuries were the result of the claimant's intoxication.
The ALJ issued a Summary Order dated November 12, 1999, which denied the claim. The Summary Order contains a certificate of mailing dated November 23, 1999. The ALJ determined the claimant was intoxicated at the time of the injuries. The ALJ also determined the injuries occurred during a personal deviation which was so substantial as to remove the claimant from the employment relationship, and that the claimant failed to prove the deviation ended prior to the accident. Therefore, the ALJ determined the claimant failed to prove he was injured in the course and scope of his employment. The ALJ issued Specific Findings of Fact in an order dated December 23, 1999, and mailed December 28, 1999.
I.
On review, the claimant renews his contention that the respondents admitted compensability. Therefore, the claimant argues the ALJ misapplied the burden of proof in requiring him to prove a compensable injury. We disagree.
Section 8-43-203(1)(a), C.R.S. 2000, requires that within twenty days of the date the respondents become aware of a disabling injury, they shall provide notice whether "liability is admitted or contested." The respondents are not required to admit liability, however, once liability is admitted the Workers' Compensation Act does not permit the respondents unilaterally to withdraw the admission. See § 8-43-203(1)(a), C.R.S. 2000; Allison v. Industrial Claim Appeals Office, 916 P.2d 623 (Colo.App. 1995); HLJ Management Group v. Kim, 804 P.2d 250 (Colo.App. 1990).
Here, the ALJ made no specific findings of fact concerning whether the respondents "admitted" liability. However, the respondents contend the record is legally insufficient to support a finding that liability was "admitted" because a copy of the March 29 admission is not on file with the Division. We disagree.
Among the purposes of the respondents' statutory duty to file an admission of liability is to "protect the injured worker before the employer's duty to make payment is established." Smith v. Myron Stratton Home, 676 P.2d 1196, 1200 (Colo. 1984). The admission also alerts the injured employee that he is involved in a situation that has legal ramifications, and prompts him to determine whether he needs to be prepared to fully litigate the issue of compensability. Smith v. Myron Stratton Home, supra.
Even though § 8-43-203 requires the respondents to provide the requisite notice to both the employee and the Division, the courts have held that for purposes of avoiding penalties the respondents have "substantially complied" with § 8-43-203(1)(a) even though no written admission or denial was ever filed. For example, in Hanson v. Industrial Commission, 716 P.2d 477 (Colo.App. 1986) the court concluded the respondents substantially complied with the statute through an oral admission at hearing. In Dorris v. Gardner Zemke Co., 765 P.2d 456 (Colo.App. 1987), the court found the respondents substantially complied with the statute where the admission of liability was filed with the Division, benefits were paid to the claimant under the admission, but the claimant did not receive a copy of the admission. Although these cases involve penalties for failure timely to admit or deny liability, they establish that the courts will not insist on strict compliance with the notice provisions so long as the parties have substantially complied and statutory objectives are not defeated.
In this case, the respondents attempt to create a distinction between an admission which is mailed and received by the Division and an admission, which for reasons unbeknownst to the parties, became lost prior to being placed in the Division file. Under the particular facts of this claim, we perceive no rational basis to create such a distinction.
The respondents concede that they initiated a general admission of liability for the payment of medical and temporary total disability benefits which contained a certificate of mailing to the claimant and the Division dated March 29, 1999. The respondents concede they mailed the admission to the claimant and the claimant confirmed receipt. Further, the respondents do not deny that the admission was mailed to the Division. (Tr. p. 9). Rather, they argue an admission is not made unless received by the Division. However, we conclude that the respondents should not be permitted to rely on the fortuitous circumstance that their otherwise proper admission failed to reach the Division's file. Under these circumstances, we conclude that the respondents' March 29 admission substantially complied with the statutory intent of § 8-43-203(1)(a), at least for purposes of requiring continuing payments under § 8-43-203(2)(d), C.R.S. 2000.
Moreover, it is clear from HLJ that respondents may not unilaterally withdraw an admission of liability. Rather payments must continue in accordance with admitted liability until the ALJ enters an order which permits the respondents to withdraw the admission. HLJ Management Group v. Kim, supra. Consequently, evidence of the respondents' April 1, 1999, letter which advised the claimant that the General Admission was being "withdrawn" is immaterial to whether the respondents admitted liability. However, if the admission is contested by either party, it is "binding only until the controverted issue is determined after the hearing." HLJ Management Group v. Kim, 804 P.2d at 253.
Following their general admission of liability the respondents determined that the admission was improvidently filed and, therefore, they placed the "compensability" issue before the ALJ for adjudication. It is well established that the claimant must prove the existence of a compensable injury. See Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991) ; Faulkner v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA1136, May 11, 2000). Section 8-41-301(1)(b), C.R.S. 2000. Consequently, the ALJ did not err in requiring the claimant to prove that his injury arose out of and in the course of the employment after the issue was properly placed before him.
II.
The claimant also contends the ALJ erroneously found he failed to sustain his burden to prove a compensable injury. Specifically, the claimant contends there is no evidence to support the ALJ's finding of a substantial personal deviation. The claimant further contends that even if there was a personal deviation, he was on his way back to the motel at the time of the accident and, therefore, he had returned to the scope of his employment. We reject these arguments.
An injury arises out of and in the course of employment when it is sufficiently related 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). An employee who is required to travel away from home on the employer's business is considered to be within the course and scope of employment from the time he leaves home to the time he returns, except when engaged in a substantial, personal deviation. Alexander Film Co. v. Industrial Commission, 136 Colo. 486, 319 P.2d 1074 (1957); Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995).
When a traveling employee is injured following a personal deviation, the employee bears the burden to prove that the deviation ended prior to the injury. Rand v. Industrial Commission, 110 Colo. 240, 132 P.2d 784 (1942). The existence of a substantial, personal deviation and whether the claimant proved the deviation ended before the injuries are questions of fact for resolution by the ALJ. Roache v. Industrial Commission, 729 P.2d 991 (Colo.App. 1986). Consequently, we must uphold the ALJ's determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000.
Substantial evidence is probative which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory or contrary inferences. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Where the evidence is subject to conflicting inferences, it is the ALJ's sole prerogative as the fact finder to determine the inferences to be drawn. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998).
The claimant testified that, after making some sales calls on Sunday, he and the assistant sales manager met in the motel lounge for drinks. (Tr. p. 23). The claimant testified that he later borrowed a product sample from a co-employee who joined them in the lounge. The claimant stated he was in the lounge one to two hours and was drinking Bloody Marys but did not remember how many drinks he had or what time he left. (Tr. . pp. 36, 37, 44). At approximately 7:00 p.m. the claimant left the motel in his vehicle. He testified that he left with the intent of making "cold calls" to locate potential customers. (Tr. pp. 29).
The co-worker testified that he and the claimant returned to the motel about 5:30 p.m. after making sales calls on Sunday, and that he was in the lounge from approximately 6:00 p.m. to 7:00 p.m. before the claimant left. (Tr. p. 87). He stated that he walked out to his truck and gave the claimant a product sample to use in making cold calls that evening. The co-worker added that the claimant did not appear to be intoxicated when he left the lounge. (Tr. . pp. 87, 92).
Sometime between 8 p.m. and 10 p.m. the claimant was involved in an automobile accident. A toxicology report stated that at 10:10 p.m. the claimant had a blood/alcohol level of .251 ml or the equivalent of 9 shots of alcohol. In the absence of evidence that the claimant had 9 alcoholic drinks in the lounge, the ALJ reasonably inferred the claimant continued to drink and did not drive around making "cold calls," after he left the motel. The ALJ's inference is consistent with the co-worker's testimony that the claimant did not appear intoxicated at 7 p.m. The ALJ's finding is buttressed the testimony of the assistant sales manager, Ken Reinke, who stated that it would be extremely unusual for a Pacesetter salesman to drive around at 8 p.m. on a Sunday evening in an unfamiliar town, to make cold calls. (Tr. pp. 102, 107).
Contrary to the claimant's further arguments, the activity of consuming alcohol may constitute a personal deviation sufficient to remove the claimant from the scope of employment, and the claimant's reliance on Wild West Radio, Inc. v. Industrial Claim Appeals Office, 905 P.2d 6 (Colo.App. 1995), is misplaced. In Wild West, the claimant was injured in a one car accident. The claimant was intoxicated at the time of the accident. However, the evidence supported the ALJ's determination the claimant's personal deviation to consume alcohol had ended and the claimant was driving to see one of the employer's customers at the time of the accident. Under these circumstances, the court upheld the ALJ's determination that the claimant's previous consumption of alcohol did not preclude a finding that the claimant suffered compensable injuries.
Here, the ALJ rejected the claimant's testimony that shortly after he left the motel he realized he was intoxicated and turned around to return to motel. Furthermore, the ALJ found the claimant was driving 90 miles an hour at the time of the accident and there is some evidence the claimant was not driving in the direction of the motel at the time of the injuries. (Tr. p. 41). Under these circumstances, the ALJ reasonably inferred that the claimant failed to sustain his burden to prove the personal deviation ended and he had returned to the employer's business at the time of the injuries.
Moreover, Employers' Liability Assurance Corp. v. Industrial commission, 147 Colo. 309, 363 P.2d 646 (1961) does not compel a contrary result. In Employer's a traveling employee was fatally injured in an automobile accident while returning to the employer's home office in Denver after completing assignments in Europe and North Africa. The death was found to be compensable even though the employee's vehicle was going in the wrong direction at the moment of the accident. The court held that a temporary deviation occurring in the course of a compensable several thousand mile journey was insufficient to show a specific deviation in the intended destination of Denver, Colorado.
Here, unlike Employers' Liability, there is substantial evidence beyond the direction of the claimant's vehicle to establish that the claimant engaged in a personal deviation which removed him from the course of his employment. Thus, the issue was whether the claimant proved the deviation ended. Evidence the claimant's vehicle was not traveling in the direction of the motel at the time of the injuries, supports the ALJ's determination that the claimant failed to sustain his burden of proof. Furthermore, the ALJ's findings of fact support the conclusion that the claimant failed to prove he was injured in the course and scope of his employment. Consequently, the ALJ correctly denied the claim for benefits after November 23, 1999.
However, unless the admission is fraudulently induced or the respondents are entitled to reduce temporary disability benefits under § 8-42-112(1)(c), they are limited to prospective relief from an improvidently filed admission. Arenas v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 99CA1067, March 16, 2000), cert. denied August 21, 2000 (employer entitled to retroactive reduction of benefits for injuries caused by intoxication as provided by § 8-42-112) ; Lewis v. Scientific Supply Co., 897 P.2d 905 (Colo.App. 1995); HLJ Management Group v. Kim, supra. Consequently, the ALJ erroneously relieved the respondents of all admitted liability prior to the date of the Summary Order. See Consolidated Landscape v. Industrial Claim Appeals Office, 883 P.2d 571 (Colo.App. 1994) (change of provider effective date of ALJ's oral order).
Finally, we note that the issue of penalties under § 8-42-112(1)(c) was raised at the hearing. ( See Tr. pp. 3, 122). The claimant does not dispute the ALJ's finding that he was intoxicated at the time of the injuries. However, the ALJ did not determine whether the injuries were the result of the intoxication as required to impose penalties under § 8-42-112(1)(c). The question of whether the claimant's intoxication "caused" the injuries is a question of fact for the ALJ. Arenas v. Industrial Claim Appeals Office, supra. Consequently, we must remand the matter for additional findings of fact.
On remand the ALJ must determine whether the respondents sustained their burden to prove that the claimant's injuries were caused by intoxication for purposes of imposing penalties under former § 8-42-112(1)(c). Based on that determination the ALJ shall enter a new order concerning the respondent's liability for workers' compensation benefits prior to November 23, 1999, consistent with the views expressed herein.
IT IS THEREFORE ORDERED that the ALJ's order dated December 23, 1999, is affirmed insofar as the ALJ denied and dismissed the claim for workers' compensation benefits effective November 23, 1999.
IT IS FURTHER ORDERED that the ALJ's order is set aside insofar as it relieved the respondents of all admitted liability prior to November 23, 1999, and the matter is remanded to the ALJ for a new order concerning the respondents' right to penalties under former § 8-42-112.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 2000. 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 October 19, 2000 to the following parties:
Brian Collett, 402 E. 42nd St., Odessa, TX 79762
Ken Reinke, Pacesetter Corporation, 4700 Kingston, Denver, CO 80239
Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Thomas D. Hacker, Esq., 3773 Cherry Creek Drive North, #575, Denver, CO 80209 (For Claimant)
Jonathan S. Robbins, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: A. Pendroy