Opinion
W.C. No. 2-236-953
April 12, 1996
FINAL ORDER
The claimant seeks review of a Supplemental Order of Administrative Law Judge Stuber (ALJ) dated December 19, 1995, which denied and dismissed his claim for workers' compensation. We reverse and remand.
Expressly relying on City of Northglenn v. Eltrich, 908 P.2d 139, 141 (Colo.App. 1995), cert. granted, December 18, 1995, the ALJ determined that the claimant's injury sustained while attending a ski clinic at Copper Mountain, did not "arise out of" and "in the course of" his employment as a ski instructor for the Winter Park Resort (employer). Instead, the ALJ determined that the claimant was injured while engaged in an activity to meet the job qualifications of the employment.
On appeal, the claimant contends, inter alia, that the ski clinic was an inherent part of his employment. Therefore, the claimant contends that the ALJ erred, as a matter of law, in concluding that the claimant's injury is not compensable. We agree.
City of Northglenn v. Eltrich, supra, involved a police officer who was injured during an off-duty exercise program designed to improve her physical condition and meet the fitness qualifications of her employment. The Court of Appeals concluded that the claimant's injury did not arise out of her employment because "the employee assumes a responsibility for meeting the job qualifications." Furthermore, based upon City and County of Denver v. Lee, 168 Colo. 208, 450 P.2d 352 (1969), which sets forth the framework for determining whether a "recreational" type activity arises out of employment, the Eltrich court determined that an injury incurred during an off-duty exercise program which is not specifically directed or controlled by the employer, and occurs off the employer's premises, does not arise out of and in the course of employment. City of Northglenn v. Eltrich, 908 P.2d at 142.
As argued by the claimant, the law creates a distinction between activities undertaken for the employee's sole benefit and training programs contemplated by the terms of employment. See University of Denver-Colorado Seminary and University Park Campus v. Johnston, 151 Colo. 465, 378 P.2d 830 (1963). Where the claimant's attendance at a training or educational activity is contemplated by the contract of hire it is considered part of the employment. 1A Larson, Workmens' Compensation Law, § 27.31(a), 1995. Therefore, an injury during that educational activity "arises out of" and "in the course of" employment.
The determination of whether a particular educational activity is contemplated by the claimant's contract of hire is dependent on the particular facts of the claim. In resolving the issue the following factors are pertinent: 1) whether the employer pays for the activity; 2) whether the activity is motivated by the employer beyond mere encouragement; 3) whether the employer permits or acquiesces in the activity; 4) whether there is a time and space connection to the employment; and 5) whether the employer benefits from the activity. Larson § 27.31(b).
In University of Denver-Colorado Seminary and University Park Campus v. Johnston, supra, a law school dean suffered a heart attack while attending a fraternity dinner where he was scheduled to speak as the president of several fraternity chapters. The dean's fraternity membership pre-dated his employment and was not a requirement of the employment. Furthermore, the dean's expenses in attending the dinner were paid by the fraternity and not the law school. Under these circumstances, the court concluded that the dean's attendance at the fraternity dinner was primarily personal and of only incidental benefit to the employer. Therefore, the court held that the dean's heart attack did not arise out of and in the course of his employment.
The opposite result was reached in University of Northern Colorado v. Jahrman, 520 P.2d 1054 (Colo.App. 1974) (not selected for publication). In that case, a university professor sustained fatal injuries in the crash of a private plane he was piloting, while returning from a professional convention. Although the employer did not request the professor to attend the convention, the employer gave permission for the professor to attend and continued his salary during the convention. Furthermore, the professor's supervisor testified that the professor's trip was related to the professor's research duties at the university. Therefore, the court concluded that, unlike the facts in Johnston, the professor's attendance at the convention was of more than incidental benefit to the employer and constituted an "inherent part of the job."
Similarly, in Keystone Int'l Inc. v. Gale, 33 Colo. App. 216, 518 P.2d 296 (1973), a part-time ski instructor's injury while practicing for a ski exam was determined to arise out of and in the course of employment. This result was based upon the fact that the employer supervised the activity and admitted that the training was a job-related function.
Here, the claimant was not engaged in an exercise program. Neither did the ALJ find that the claimant was engaged in a recreational activity. Rather, the ALJ determined that the claimant was injured while attending a training course designed to improve his skills pursuant to the employer's requirement that he advance toward "Trainer's Accreditation."
Specifically, the ALJ found that the claimant's pay scale and continued employment was based upon the extent to which the claimant achieved the written goals contained in his "Personal Development Strategy." This was a document which the claimant developed together with his "Team Leader." The ALJ found that the claimants's written goals included obtaining "Trainer's Accreditation," which required the claimant to complete eight clinic credits, four of which had to be in the last two ski seasons and two of which had to be "Trainer's Prep." clinics.
Admittedly, the ALJ found that the employer did not specifically direct the claimant to attend a ski clinic at Copper Mountain where the claimant was ultimately injured. However, the ALJ's findings reflect his determination that the terms of employment expressly contemplated that the claimant would attend the type of ski clinic offered at Copper Mountain. Moreover, the ALJ's findings reflect that the employer exercised much greater control over the specific activities which would satisfy the claimant's "job qualifications" than did the employer in Eltrich. See also Price v. Industrial Claim Appeals Office, 908 P.2d 136, 138 (Colo.App. 1995) cert. granted, December 18, 1995.
Furthermore, the ALJ determined that the employer gave the claimant time off from work to attend the required ski clinics. Therefore, unlike the facts in Eltrich, this claim does not involve an "off duty" activity in addition to the claimant's regular employment activities. Rather, the ALJ determined that the claimant's attendance at the ski clinic occurred during the claimant's normal working hours and thus, was in lieu of his regular employment activities.
The facts of this claim are also unlike Eltrich in that the employer contributed to the cost of the claimant's activity. The ALJ found that the employer reimbursed the claimant for the cost of successfully completed ski clinics, and allowed the claimant to use one of the employer's vehicles to travel to the ski clinic at Copper Mountain. Consequently, we agree with the claimant that Eltrich is distinguishable from the facts of this claim.
Furthermore, we conclude that the ALJ's findings of fact compel the conclusion that the claimant's injury occurred during an educational activity which is an inherent part of the claimant's employment. Relevant factors supporting this conclusion are:(1) ski class was contemplated by the employment contract and was paid for by the employer (2) there was a "time" connection to the employment as well as the provision of an automobile (3) the employer provided more than simple "encouragement" to the claimant. Therefore, we reverse the ALJ's determination that the injury did not arise out of and in the course of the claimant's employment.
In reaching this conclusion we recognize that the respondents dispute some of the ALJ's findings of fact. However, the respondents did not appeal the ALJ's Supplemental Order and therefore, the respondents' argument is not properly before us for review. Newman v. McKinley Oil Field Service, 898 P.2d 238 (Colo. 1984).
As a result of our disposition, we need not consider the claimant's remaining arguments.
IT IS THEREFORE ORDERED that the ALJ's Supplemental Order, dated December 19, 1995, is reversed and the matter is remanded to the ALJ for further proceedings concerning the claimant's entitlement to benefits.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed April 12, 1996 to the following parties:
Walter Lewis Koski, P.O. Box 492, Winter Park, CO 80482
Winter Park Recreational Assoc., P.O. Box 36, Winter Park, CO. 80482-0036
Winter Park Recreational Assoc., % Occupational Healthcare Mgmt. System., 700 Broadway, #1132, Denver, CO 80273
Richard J. Leach, Esq., 1120 Lincoln St., Ste. 1000, Denver, CO 80203-2138
(For the Claimant)
Ronald C. Jaynes, Esq., 777 E. Speer Blvd., Ste. 210, Denver, CO 80203
(For the Respondents)
BY: _______________________