Opinion
W.C. Nos. 4-507-018 4-506-807.
June 26, 2007.
FINAL ORDER
The respondents seek review of a supplemental order of Administrative Law Judge Connick (ALJ) dated March 13, 2007, that found the consolidated claims were compensable. We affirm.
These claims have an involved appellate history. The claims arise out of a motor vehicle accident that occurred on May 18, 2001 on Highway 6. The claimant John Hafner (John) was a passenger in a truck driven by his father Mikel Hafner (Mikel). The accident occurred as John and Mikel were driving to work at the Casino Project located in Black Hawk, Colorado. Mikel was killed in the accident and his wife and younger son seek death benefits. John sought workers' compensation benefits for injuries and disability sustained as a result of the accident. The claims were originally heard before ALJ Coughlin who denied the claims. The panel reversed the ALJ's order.
The court of appeals determined that we had misapplied Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999) in concluding that the receipt of a wage premium, without more, rendered compensable death and injuries resulting from the accident during the travel to work. Sturgeon Electric v. Industrial Claim Appeals Office, 129 P.3d 1057 (Colo.App. 2005). The court of appeals remanded for additional findings and evidence regarding the relationship between a $1.50 per hour premium paid by the employer to employees who agreed to work on the Casino Project and Mikel's and John's travel expenses.
The court of appeals noted that in Madden, the supreme court addressed the going to and coming from work rule, under which injuries are generally not compensable under the Workers' Compensation Act. The Madden court held that "the determination of whether a traveling employee's injury warrants an exception to the going to and from work rule is such a fact-specific analysis that it cannot be limited to a predetermined list of acceptable facts and circumstances." Madden, 977 P.2d at 864. Accordingly, the Madden court ruled that the proper approach was to consider a number of factors to determine whether special circumstances warrant recovery under the Act. According to the Madden court, those factors include, but are not limited to: (1) whether the travel occurred during working hours; (2) whether the travel occurred on or off the 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" in which the injury arose. Id.
The court of appeals pointed out that the Madden court, in addressing the third factor, explained that the issue of whether travel was contemplated by the employment contract "has the potential to encompass many situations." Sturgeon Electric, 129 P.3d at 1059, quoting Madden, 977 P.2d at 864. The common link among compensable situations is that travel is a substantial part of the service provided to the employer as, for example, (a) when a particular journey is assigned or directed by the employer; (b) when the employee's travel is at the employer's express or implied request or when such travel confers a benefit on the employer beyond the sole fact of the employee's arrival at work; and (c) when travel is singled out for special treatment as an inducement to employment. The Madden court further noted that these examples are "not an exhaustive list of the situations when travel is found to be part of the employment contract." Madden, 977 P.2d at 865.
The court of appeals explained that the issue presented here, whether travel is singled out for special treatment as an inducement to employment when the employer pays an increased hourly premium to induce workers to travel to a particular worksite, has not been previously addressed by Colorado's appellate courts. The court of appeals adopted a fact-specific analysis to determine whether an additional payment for travel brought such travel within the scope of the employment relationship as most consistent with the Madden court's mandate to employ a fact-specific inquiry.
Accordingly, the court of appeals remanded for the determination of additional facts that bear on whether the $1.50 per hour premium here was in the nature of noncompensable work remuneration or a travel payment that is substantially related to the distance traveled and the actual costs incurred. The court of appeals directed the ALJ to endeavor to make factual findings which would lead either to the conclusion that payment of the hourly premium served as a fringe benefit so that the travel was not within the work relationship or that it was a special inducement so as to bring the travel within the work relationship. The ALJ was directed to make specific findings on five matters.
ALJ Connick entered a supplemental order on remand making specific findings as directed by the Court of Appeals. The specific additional findings the court of appeals remanded for and ALJ Connick's pertinent findings of fact with record support are as follows.
1. The number of miles traveled by Mikel and John from their home in Thornton to Black Hawk and back. The ALJ found Mikel and John traveled 76 miles roundtrip from their home in Thornton to the Black Hawk Park-and Ride where an employer shuttle transported them to the jobsite. Exhibit 8 at1; Tr. (9-8-02) at 27.
2. The cost of operating a car to drive that distance on a daily basis. The ALJ found the fuel, maintenance and tire expenses totaling $10.82 per day reasonably approximated the daily cost of operating their vehicle to travel the 76 mile route along Highway 6 to and from Black Hawk. The truck averaged 19.5 miles per gallon. Exhibit 8 at 4. The cost of fuel at the time was $1.586 per gallon . Exhibit 5 at 7. The cost per mile for maintenance and tires was $.059. Exhibit I at 2.
3. The extent to which the $1.50 per hour premium covered Mikel's and John's actual travel costs. The ALJ found that for a normal eight hour day, the $1.50 per hour premium yielded a daily total of $12. The daily total of $12 for the premium substantially covered Mikel and John's actual travel costs of $10.82 per day.
4. The extent to which other Sturgeon employees traveled to reach the Black Hawk jobsite. (For example, on the one hand, if some electricians received the $1.50 per hour premium even though they lived in Black Hawk or Central City, this would militate in favor of a finding that the additional premium payment was merely a work remuneration; on the other hand, if all electricians hired for the Black Hawk site had to travel a substantial distance, this would militate in favor of the conclusion that the $1.50 per hour premium was a travel expense associated with inducing all employees for that project to travel to Black Hawk.) The ALJ found that at one time or another, there were about 172 electricians employed by the employer who worked on the Casino Project. The vast majority of the electricians commuted a substantial distance to the Casino Project. Most of these traveled from the Denver area. Exhibit A. One electrician lived in Idaho Springs and commuted approximately 16 miles to the jobsite. Another lived eight miles from Black Hawk and commuted to the jobsite. A third also lived locally. All three were paid the $1.50 per hour premium and likely would have been upset had all others besides themselves received the $1.50 premium.
5. Any difficulties traveling from Thornton to Denver on mountain roads that provided a special benefit to Sturgeon or posed an unusual risk to employees. The ALJ found the employer did not designate what route employees must use to work on the Casino Project. There were three routes from metropolitan Denver to the Casino Project. Mikel and John traveled from Thornton to Black Hawk on Highway 6 to Highway 119. The route used by Mikel and John was the shortest in distance. Based on conflicting evidence the ALJ determined that Highway 6 poses an unusual risk for its travelers. Testimony of Thomas Alcorn Tr. (5-15-06) at 86; Exhibit 2 at 8.
The ALJ found that the travel to Black Hawk was a substantial part of the service performed by Mikel and John Hafner. In order to meet its manpower needs in a tight market, the employer needed to attract workers to forego Denver jobs and travel to Black Hawk. The vast majority of electricians traveled a substantial distance to the Casino Project. This fact militates in favor of the conclusion that the $1.50 per hour premium was a travel expense associated with inducing all employees for the Casino Project to travel to Black Hawk. That fact that a small minority of local employees out of 172 received the above-scale wages, but did not incur costs for substantial travel, does not diminish the characterization of the incentive pay as a travel allowance, as the vast majority of employees actually incurred these travel expenses.
The employer chose $1.50 an hour as an amount adequate to induce a sufficient number of employees to travel to Black Hawk. The increased hourly premium was substantially related to the distance to the jobsite on the shortest route. The approximate daily amount of the premium pay, $12, substantially covered the Hafners' actually travel costs, which were approximately $10.82 daily. Because the premium pay bore a substantial relationship to the distance traveled and the actual travel costs incurred, it more likely justifies a finding that the employees were within the scope of employment while traveling to and from work.
There were difficulties traveling from Thornton to Denver on mountain roads that posed an unusual risk to employees. Highway 6, the most direct route from the Denver metropolitan area posed an unusually risk to its travelers based on its comparative fatality rate and its configuration. This supported a characterization of the incentive pay as a special inducement therefore bringing their travel within the work relationship.
The ALJ concluded that, given the employer's motivation in offering the increased hourly premium, the fact that the premium was substantially related to the actual miles traveled and the Hafners' actually travel costs, the fact that the vast majority of electricians traveled a substantial distance to Black Hawk, and the unusual risk to employees who traveled on Highway 6, the above-scale wages were a special inducement brining the Hafners' travel within the employment relationship. Their travel was singled out for special treatment as an inducement to employment. Therefore, Mikel Hafner's death and John Hafner's injuries were caused by the performance of service arising out of or in the course of their employment and are therefore compensable.
I.
On appeal the respondents first contends that there is no substantial evidence to support the conclusion that travel was contemplated by the employment contract of the parties. We disagree.
We must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2006. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo.App. 1999). In particular, we note that the weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968). Substantial evidence is that quantum of probative evidence which a rational fact finder would accept as adequate to support a conclusion without regard to the existence of conflicting evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411, 415 (Colo.App. 1995).
As noted above the additional facts the ALJ made as directed by the court of appeals on remanded are all supported by the record. The respondents point out the existence of other evidence such as similar wages being paid to workers at the construction site of the Denver International Airport who were not informed by the employer's staff or by the union that the extra money was available for "travel expenses." While this evidence might support a contrary determination it does not afford us grounds to grant appellate relief. See Colorado Fuel and Iron Corp. v. Industrial Commission, 152 Colo. 25, 380 P.2d 28 (1963); Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981) (expert medical evidence not dispositive of causation).
II.
The respondents next contend the ALJ incorrectly found certain circumstances to be so significant that they require a re-characterization of the employment contract, but her conclusions are not supported as rational inferences in light of the substantial evidence. As we read the argument of the respondents they are contending that the ALJ's weighing of the additional factors set forth for analysis by the court of appeals are not legally significant in reaching the issue of whether there was any contractual agreement to provide travel pay. The respondents appear to argue that this is not in compliance with Madden, supra. However, like the ALJ, we are bound by the decision of the court of appeals. C.A.R. 35. The respondents' arguments do not afford us grounds to grant appellate relief.
III.
The respondents next contend the ALJ's conclusion regarding unusual risk of travel is internally inconsistent, contrary to the evidence, and irrational. We disagree.
The ALJ's determination of the unusual risk posed by Highway 6 was primarily based on conflicting expert testimony. The ALJ credited the opinion of the claimant's expert in forensic engineering, accident investigation, accident reconstruction, traffic and safety engineering and highway design and safety rather than the respondent's expert in accident reconstruction from the Colorado State Patrol. The weight and credibility to be assigned expert testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002). To the extent expert testimony is subject to conflicting interpretations, the ALJ may resolve the conflict by crediting part or none of the testimony. Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968).
The ALJ found that Highway 6 poses an unusual risk while at the same time finding that the claimant failed to establish that this unusual risks posed by Highway 6 contributed to the accident. However, as we read the court of appeals remand the ALJ correctly identified the issue as whether the travel from Thornton to Denver posed an unusual risk to the employees in general and not whether the unusual risk in fact caused or contributed to the accident in question.
The ALJ recognized that there were alternative routes from Metropolitan Denver to the Casino Project. The route used by the Hafners was the shortest in distance, but took somewhat longer than taking Interstate 70. We perceive no error in the ALJ consideration of the actual route taken by the Hafners rather then the alternative route via I-70.
IV.
The respondents next contend that the findings and conclusions of the ALJ concerning the distance that employees traveled to reach the Casino Project are internally inconsistent, not supported by substantial evidence, or irrational. We again disagree.
This portion of the respondent's brief dated February 6, 2007 appears to be directed at errors alleged to have been contained in the ALJ Connick's order of November 22, 2006. ALJ Connick entered a Supplemental Order dated March 13, 2007, which addressed the issue raised by the respondents regarding how many electricians traveled from Denver to Black Hawk. The respondent's have not filed a brief in support of their petition to review the supplemental order and we are not certain what objections, if any, they have concerning the findings made by the ALJ in the Supplemental Order. At any rate we are convinced that the ALJ in her Supplemental Order correctly weighed the evidence as directed by the court of appeals in finding that the vast majority of electricians commuted a substantial distance to the Casino Project and most travel from the Denver metropolitan area. Further, we agree with the ALJ's understanding of the remand from the court of appeals that this would militate in favor of the conclusion that the $1.50 premium was a travel expense associated with inducing all employees for that project to travel to Black Hawk.
V.
The respondents next contend that the ALJ improperly evaluated evidence concerning the cost of operating a vehicle to travel to Black Hawk, and incorrectly, inconsistently, and in contradiction of evidence, which she finds relevant, abuses her discretion by weighing the evidence to determine the extent to which the $1.50 per hour premium covered the Hafners' actual travel costs.
The respondents question the ALJ estimate of $10.82 as the daily cost to operate a car to drive to and from Black Hawk as directed by the court of appeals. The respondents contend that since the ALJ found that Mikel and John each received above-scale payment of approximately $12 a day, the amount they received jointly, totaling $24, should be compared to their daily cost of $10.82 since they traveled together. We disagree. The court of appeals remanded for the ALJ to make a specific finding on the cost of operating a car to drive the distance on a daily basis, which would then be contrasted to the $1.50 an hour premium to see if they were comparable. We agree with the ALJ's reading of the court of appeals remand that this comparison is not dependent on whether the riders choose to car pool. Instead the court of appeals directed that the cost of operating a car to drive that distance on a daily basis was to be compared with the $1.50 per hour premium. Therefore, we detect no reversible error in the ALJ's weighing of this evidence to make the comparison as directed by the court of appeals.
The ALJ in her ordered noted that the Hafners may have had additional insurance, registration and tax expenses in connection with the operation of Mikel's vehicle, but these expenses were not part of the record. Order at 4, ¶ 13. The respondents, citing § 8-43-201, C.R.S. 2006, contend the ALJ erred because under this procedure the ALJ reversed the burden of proof and held the respondents accountable for not presenting relevant evidence in estimating the actual costs of running a vehicle. We disagree.
The ALJ on remand was directed by the court of appeals to make additional findings of fact and the parties were presented with the opportunity of presenting further evidence as they saw fit. The ALJ merely noted that ideally more evidence could have been presented and we can not say that the evidence, as a matter of law, was insufficient to remove the ALJ's findings on remand from the realm of conjecture and mere possibilities. Therefore, the order of the ALJ can be upheld. Industrial Commission v. Royal Indem. Co., 124 Colo. 210, 236 P.2d 293 (Colo. 1951).
The respondents contend the ALJ's calculations of the costs of travel were artificial and consist of picking and choosing from the respondents' evidence. The respondents point out the existence of other evidence, including the Federal Government Mileage Reimbursement Rate and certain portions of the "True Cost of Driving" study which, if credited, might support a contrary determination. However, this does not afford us grounds to grant appellate relief. See Colorado Fuel and Iron Corp. v. Industrial Commission, supra; Casa Bonita Restaurant v. Industrial Commission, supra. We have reviewed the respondents' additional arguments in this portion of their brief and they do not alter our conclusions.
VI.
The respondents' finally contend that the ALJ's conclusions of fact and law demonstrate a fundamental abuse of discretion and a misunderstanding of the going and coming rule. The respondents essentially argue that the order of the ALJ is contrary to the fundamental principles set forth in Madden v. Mountain West Fabricators.
The appellate standard on review of an alleged abuse of discretion is whether the ALJ's order exceeds the bounds of reason, as where it is contrary to the applicable law or unsupported by the evidence. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993); Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985). The court of appeals analyzed the principles set forth in Madden v. Mountain West Fabricators and remanded the matter back to the ALJ to make appropriate findings of fact. In our view the argument raised by the respondent concerning the going and coming rule is controlled by the court of appeals' remand. It cannot be disputed that we (and the ALJ) are bound to comply with the terms of the remand order. Halliburton Services v. Miller, 720 P.2d 571, 575 (Colo.App. 1986). See also, Meyer v. Milliken, 105 Colo. 532, 538, 100 P.2d 151, rev'd on other grounds, 311 U.S. 457, 61 S.Ct. 339 (1940); Galbreath v. Wallrich, 48 Colo. 365, 369-71, 68 P. 221, 222-23 (1902). In our view the ALJ made the necessary findings of fact and applied the law to those facts as directed by the court of appeals. Therefore, in our opinion there was no abuse of discretion.
IT IS THEREFORE ORDERED that the ALJ's supplemental order dated March 13, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
Kathleen and John Hafner 1905 E. 98th Avenue Thornton, CO, Zurich Insurance Co. Lin Barnett, Denver, CO, McElroy, Deutsch Mulvaney, LLP Thomas L. Kanan, Esq., Broadway Avenue #1900 Denver, CO (For Respondents).
Marsha A. Kitch, Esq. Evergreen Pkwy Evergreen, CO 80439, (For Respondents).
Dworkin, Chambers, Williams, York, Benson and Evans, P.C. Melissa J. Loman Evans, Esq. E. Mexico Ave # 1300 Denver, CO (For Claimant).