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In re Kelly, W.C. No

Industrial Claim Appeals Office
Oct 6, 2004
W.C. No. 4-554-975 (Colo. Ind. App. Oct. 6, 2004)

Opinion

W.C. No. 4-554-975.

October 6, 2004.


FINAL ORDER

The claimant seeks review of an order of an order of Administrative Law Judge Martinez (ALJ), which determined the claimant failed to prove he suffered injuries arising out of and in the course of employment and, therefore, denied and dismissed the claim for workers' compensation benefits. We affirm.

The claimant alleged work-related injuries during travel. The respondents denied the claimant was traveling at the time of the injuries and that travel was contemplated by the employment contract.

At the conclusion of the claimant's presentation of evidence the ALJ entered a directed verdict in favor of the respondents. The ALJ's findings may be summarized as follows. The claimant was hired as a laborer for T.J. Construction, which is owned and operated by Troy Nelson (Nelson). The claimant resides in Ridgway, Colorado and the work site was located in Telluride, Colorado. At the time of hire, the claimant did not have a driver's license but a co-employee, James Miller (Miller) advised the claimant that either he or Nelson would give the claimant a ride to the work site because they were going that way anyway. The claimant generally walked to Miller's residence where the two of them would either wait for Nelson to pick them up or Miller would drive them to work in his personal vehicle. Neither claimant nor Miller was paid for their travel time or reimbursed for travel expenses to and from Telleride.

On April 23, 2001, the claimant walked to Miller's house to wait for Nelson to pick them up. When Nelson did not arrive, Miller instructed the claimant to start Miller's vehicle so Miller could drive them to Telleride. After starting Miller's truck the claimant went back inside Miller's home. Nelson then arrived. As the claimant exited Miller's home to meet Nelson he noticed Miller's vehicle rolling backwards down the driveway. The claimant was injured while trying to stop Miller's vehicle from hitting Nelson's vehicle.

In determining the claimant failed to prove compensable injuries, The ALJ rejected the claimant's contention that he was in travel status at the time of the accident. Instead, the ALJ found that the rides arranged for the claimant to the job site were "incidental" to the employment contract because they "were not provided at the employer's expense or implied request nor did they confer a benefit on the employer beyond the sole fact of claimant's arrival at work." Further, the ALJ determined the claimant was not injured while "coming to and going from work." Rather, the ALJ determined the claimant was injured "in the process of waiting for a ride from his employer." Therefore, the ALJ concluded the legal standard announced in Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999), was not applicable.

On review, the claimant renews his contention that he was in "travel status" at the time of the injury. The claimant also contends the circumstances presented here are essentially identical to the facts in Staff Administrators Inc. v. Reynolds, 977 P.2d 866 (Colo. 1999), where a laborer suffered compensable injuries in a motor vehicle accident while carpooling to a job site. We are not persuaded there is any basis to disturb the ALJ's order.

To prove a compensable injury the claimant is required to establish that the injury arose "out of and in the course of" employment. Generally, injuries sustained by employees going to and from work are not compensable because such travel is not considered to occur in the course of the claimant's employment. Madden v. Mountain West Fabricators, supra; Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 212 (Colo. 1967). However, such injuries are compensable if "special circumstances" exist which demonstrate a nexus between the injuries and the employment. Berry's Coffee Shop, Inc. v. Palomba, supra.

The Madden court also recognized that travel may be part of the service to the employer if it is at the express or implied request of the employer. In such cases the claimant is said to be in "travel status." Id. at 865. The essence of the travel status exception to the "going to and coming from" rule is that when the employer requires the claimant to travel beyond a fixed location established for the performance of his duties, the risks of such travel become risks of the employment. Staff Administrators Inc., v. Industrial Claim Appeals Office, 958 P.2d at 511; Martin K. Eby Construction Co. v. Industrial Commission, 151 Colo. 320, 377 P.2d 745 (1963). Evidence that an employer paid for transportation or provided lodging and meals is indicative of travel status. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9, 12 (Colo.App. 1995).

The determination of whether a claimant was a traveling employee who was on travel status at the time of an injury is a question of fact for resolution by the ALJ. Wild West Radio, Inc. v. Industrial Claim Appeals Office, 905 P.2d 6 (Colo.App. 1995). Because it is factual in nature, the ALJ's determination must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003; Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).

Further, C.R.C.P. 41(b)(1), provides that a directed verdict may be entered after a plaintiff has completed his presentation of evidence, if the plaintiff has failed to present a prima facie case for relief. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988) (C.R.C.P apply insofar as not inconsistent with the procedural or statutory provisions of the Workers' Compensation Act). Contrary to the claimant's contention, the ALJ is not required to view the evidence in the light most favorable to the nonmoving party in ruling on a motion for directed verdict. Rowe v. Bowers, 160 Colo. 379, 417 P.2d 503 (1966); Blea v. Deluxe/Current, Inc., W.C. Nos. 3-940-062 (June 18, 1997) (applying these principles to workers' compensation proceedings). Neither is the court required to "indulge in every reasonable inference that can be legitimately drawn from the evidence" in favor of the claimant. Rather, because the matter is tried without a jury the test is whether judgment for the respondents is justified on the claimant's evidence. American National Bank v. First National Bank, 28 Colo. App. 486, 476 P.2d 304 (1970); Bruce v. Moffat County Youth Care Center, W.C. No. 4-311-203 (March 23, 1998).

Here, the claimant had a fixed work site and was not required to travel after he arrived to the work site. Further, it is undisputed the claimant was not paid for his travel time and was not provided any reimbursement for travel costs. Under these circumstances, the ALJ could, and did, infer the claimant was not a traveling employee.

Further, we reject the claimant's contention the ALJ erred in finding the claimant failed to establish a sufficient causal connection between the employment and the injuries. In Madden v. Mountain West Fabricators, supra, the court listed four factors which are relevant in determining whether "special circumstances" have been established that create an exception to the "going to and coming from" rule. These factors are: 1) whether the travel occurred during work 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." 977 P.2d at 864.

Madden was injured in a motor vehicle accident while traveling from his home in Grand Junction, Colorado, to a construction site in Rifle, Colorado. The accident occurred approximately one hour before the claimant was to commence his duties as a construction worker, and the claimant was not earning wages or paid mileage expenses to drive to work. Because Madden's employment required him to work away from home and away from the employer's place of business, we concluded the employment contract included an expectation the claimant would travel. However, the court disagreed.

The Madden court concluded travel was not contemplated by the employment contract because Madden was free to car pool or use any other form of transportation to get to the job site, and once Madden arrived at the job site he was not required to use his own vehicle to perform his job duties. Moreover, the construction site was Madden's fixed work site for that phase of the employment. Under these circumstances, the court concluded travel was not a substantial part of the service Madden performed for the employer and Madden's travel on the day of the injuries did not confer a benefit on the employer apart from Madden's arrival at work. 977 P. 2d at 866. Therefore, the court rejected our conclusion that Madden's injuries while driving to work were compensable.

As argued by the claimant the opposite result was reached in the companion case of Staff Administrators v. Reynolds, supra, where the owner of the construction company had employees meet at a convenience store where the owner would "fuel up" at his expense, pick up the employees and transport them to the job site. On the day of Reynolds injuries he was forced to drive his personal vehicle to the job site because he did not reach the convenience store before the other workers had left. Reynolds was I njured during the drive to the work site. Because the employer arranged for employees to rendezvous at a particular location to be transported to the job site and it was the "custom" of the employer to pay for gas and arrange a carpool for employees the court concluded travel was singled out for special treatment. Furthermore, upon consideration of the fact that the job site was 90 miles from the rendezvous site, the court concluded travel was a substantial part of Reynold's service to the employer. Therefore, the court held Reynolds established a sufficient causal connection between the injury and the employment to render the injuries compensable. Id. at 868.

Here, it is undisputed the claimant's injuries did not occur during work hours or on the employer's premises. Nor is there any assertion the employment created a special zone of danger. Further, the ALJ could reasonably infer that unlike the facts in Staff Administrator, the claimant failed to prove by a preponderance of evidence that travel was contemplated by the employment.

The claimant admitted he was not promised transportation from the employer and he did not expect a ride from Nelson every day. (Tr. pp. 20, 56, 59). Furthermore, although Miller's house was the rendezvous location if the claimant and Miller rode to work with Nelson, it was also the location if Miller and the claimant rode together and in that event the employer did not reimburse Miller for travel expenses. Moreover, unlike the facts in Staff Administrators, Nelson did not arrange to transport the claimant to the job site. To the contrary claimant admitted Nelson and Miller offered the claimant a ride to the job site only because they had to drive in that direction anyway. (Tr. p. 15). Indeed had the claimant relied on the employer to transport him to work, he would not have started Miller's car with the purpose of having Miller drive him to work. Given these facts, we cannot say the record compelled the ALJ to find the employer singled out travel for special treatment.

In any case, the record supports the ALJ's inference that the claimant was not injured while going to and coming from work. Rather, the claimant was injured while waiting to begin his commute to work.

IT IS THEREFORE ORDERED that the ALJ's order dated, March 24, 2004, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________ David Cain

____________________ Kathy E. Dean

David Kelly, Ridgway, CO, T.J. Construction, Inc., Ridgway, CO, Adam's Ranch Partners, Telluride, CO, Legal Department, Pinnacol Assurance — Interagency Mail Amy K. Eaton, Esq. and J. Keith Killian, Esq., Grand Junction, CO, (For Claimant).

Luke A. Brennan, Esq., Grand Junction, CO, (For Respondent T.J. Construction, Inc.) Nancy Hummel, Esq. and T. Paul Krueger, II, Esq., Denver, CO, (For Respondents Adam's Ranch Partners and Pinnacol Assurance).


Summaries of

In re Kelly, W.C. No

Industrial Claim Appeals Office
Oct 6, 2004
W.C. No. 4-554-975 (Colo. Ind. App. Oct. 6, 2004)
Case details for

In re Kelly, W.C. No

Case Details

Full title:IN THE MATTER OF THE CLAIM OF DAVID KELLY, Claimant, v. T.J. CONSTRUCTION…

Court:Industrial Claim Appeals Office

Date published: Oct 6, 2004

Citations

W.C. No. 4-554-975 (Colo. Ind. App. Oct. 6, 2004)

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