Opinion
W.C. No. 4-349-438
July 30, 1998
FINAL ORDER
The respondents seek review of orders issued by Administrative Law Judge Martinez (ALJ) on October 24, 1997 and May 20, 1998, which determined the claimant suffered a compensable injury and required the respondents to pay temporary disability and medical benefits. We affirm.
The claimant is employed part-time by Rocky Mountain Nurses (employer), which is a home health care staffing service. Between February 1997 and August 8, 1997, the claimant accepted six work assignments. After each shift the claimant dropped off her timecard at the employer's business office and later returned to collect her paycheck. On August 8, 1997, the claimant went to the employer's business office to obtain her paycheck from the last assignment. While leaving the employer's business office, the claimant fell down a fight of stairs and fractured her left ankle.
The ALJ found that the claimant's sole purpose for going to the employer's business office was to get her paycheck. Furthermore, the ALJ determined that injuries sustained while collecting pay are incidental to employment. Therefore, in an order dated October 24, 1997, the ALJ determined the claimant proved by a preponderance of the evidence that she suffered a compensable injury. On May 20, 1998, the ALJ ordered the respondents to provide medical benefits and pay temporary total disability benefits on account of the injury.
On review, the respondents contend the ALJ misinterpreted the applicable case law. Therefore, the respondents argue the ALJ erroneously found that the claimant's injury arose out of and in the course of her employment. We perceive no error.
Only those injuries arising out of and in the course of employment are compensable. Section 8-41-301(1)(b), C.R.S. 1997. Generally, an activity arises out of and in the course of the 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).
Collecting pay is generally considered to be an incident of employment, because the employment is not fully completed until the employee has been paid. A. Larson, Workers' Compensation Law, § 26.30 (1998). Therefore, injuries sustained while collecting a paycheck may be considered to arise out of and in the course of employment. 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).
In Alpine Roofing Company v. Dalton, 36 Colo. App. 315, 539 P.2d 487 (Colo.App. 1975), the court expressly cited Larson to conclude that an injured employee sustained a compensable injury. In that case, the employee went to the employer's premises to retrieve his paycheck. After a discussion about a discrepancy in the paycheck the employee was fired. As the employee was leaving the employer's premises he was struck by his former supervisor. The court concluded that the claimant's injuries arose out of and in the claimant's employment because the altercation occurred on the employer's premises and was generated by a discrepancy in the employee's paycheck. See also Smith v. Drake Industries, Inc., W.C. No. 3-948-301, (November 5, 1990).
The respondents contend that Alpine only applies to the collection of pay immediately following an employment termination, and that the conclusions of Professor Larson only apply to the collection of pay by terminated employees. Therefore, the respondents argue that neither Alpine nor Larson supports the ALJ's determination that the claimant suffered a compensable injury. We disagree.
In L.E.L. Construction v. Goode, supra, an employee was killed while traveling from the work site to the employer's business office to pick up his paycheck. L.E.L. did not involve a "terminated" employee. Nevertheless, the court expressly relied on Larson and Alpine Roofing Co. v. Dalton, supra, to conclude that the employee's death was compensable. Therefore, we understand L.E.L. to reflect the court's conclusion that the collection of pay is incidental to the employment of both terminated and active employees.
However, the respondents point out that, unlike the facts in L.E.L., the claimant in this matter was not traveling directly from the job site to the employer's business office. Rather, the claimant was in between assignments and with her son at the time of the injury. Therefore, the respondents contend that L.E.L. is factually distinguishable. We are not persuaded.
In L.E.L., it was the employer's normal practice to deliver the employee's paycheck to him at the work site. However, the employee obtained special permission to pick up his paycheck a day early at the employer's business office. Accordingly, the court concluded that the travel was specifically authorized by the employer. The L.E.L. court also found that the employee's travel conferred a benefit on the employer by relieving the employer of the duty to deliver the paycheck to the employee at a remote job site. Under these circumstances, the court held that the employee was acting within the course and scope of his employment at the time of the fatal injuries.
Here, the evidence indicates that it was the employees' option to pick up their paychecks instead of having them mailed. All paychecks which were not picked up by Thursday were mailed. The claimant normally picked up her check on Thursday. However, the claimant obtained special permission to pick up the paycheck from her latest assignment on Friday, August 8, 1997. (Tr. p. 14). Thus, the ALJ could reasonably infer that the claimant's travel to the employer's business office was authorized by the employer. The evidence also supports an inference that the claimant's travel conferred a benefit to the employer by eliminating the employer's duty to mail the paycheck.
We also note that even though the claimant is not required to go to the employer's business office to pick up her paycheck, she traveled to the employer's business office to deliver her timecards. Furthermore, the claimant does not work at the employer's business office and does not have a fixed job site. (Tr. pp. 22, 28). Rather, she is required to travel to various job sites. (Tr. p. 14). Consequently, travel is an inherent part of the claimant's employment. See Staff Administrators Inc., v. Industrial Claim Appeals Office, ___ P.2d ___ (97CA0910, December 10, 1997), cert granted June 29, 1998, 97SC65 (travel may be considered part of the job, regardless of whether the claimant is paid a wage or mileage for the travel); Benson v. Colorado Compensation Insurance Authority, 870 P.2d 624 (Colo.App. 1994) (home health aide's injury sustained while traveling between job sites was compensable because it conferred benefit on employer beyond claimant's mere arrival at work).
We decline to read L.E.L. as inapplicable to part-time employees, like the claimant, who work at night and are not able to collect their pay during or after a work shift. Consequently, L.E.L. supports the ALJ's determination that the claimant was acting in the course of her employment at the time of the injury.
Moreover, the respondents' argument neglects the fact that the claimant's sole reason for traveling to the employer's business office was to collect her paycheck, and there is no evidence the claimant engaged in any personal deviation while leaving the employer's premises and prior to the injury. (Tr. pp. 23, 24). Under these circumstances, it is immaterial whether the claimant engaged in personal activities before traveling to the employer's office, or that she intended to engage in personal activities after getting her paycheck. At worst, the evidence indicates that the claimant's travel to the employer's business office falls within the "dual purpose doctrine." Thus, the claimant's injury is fully compensable. See Whale Communications v. Osborn, 759 P.2d 848 (Colo.App. 1988).
Nevertheless, the respondents contend that the claim is subject to the "going to and coming from" rule, which provides that, absent "special circumstances," injuries sustained while going to or coming from work are not compensable. Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2 (1967). The respondents contend that there are no special circumstances here, and the claimant's injury occurred when the claimant was leaving the building where the employer's business office is located. Therefore, the respondents argue the claimant was not within the course of her employment at the time of the injury. Again, we disagree.
The "going to and coming from" rule applies to injuries which occur while the employee is traveling to work or from work and is off the employer's premises. Once the claimant arrives at work and is on the employer's premises, the rule is no longer applicable. Larson § 15.11; Roache v. Industrial Commission, 729 P.2d 991 (Colo.App. 1986); Perry v. Crawford Co., 677 P.2d 416 (Colo.App. 1983).
Here, the claimant was injured inside the building where the employer's business office is located, approximately 30 feet from the door of the employer's business office, and on a normal route to exit the building. (Tr. pp. 6, 12, 25). Thus, the injury occurred on the employer's premises and is not subject to the "going to and coming from" rule.
Furthermore, injuries sustained following the conclusion of work while leaving the employer's premises are considered to occur in the course of employment because leaving the employer's premises is a normal incident of the employment relationship. See Ventura v. Albertson's Inc., 856 P.2d 35 (Colo.App. 1992). Therefore, the ALJ did not err in concluding that the claimant sustained her burden to prove that the injury arose out of and in the course of her employment.
The respondents' further arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's orders dated October 24, 1997, and May 20, 1998, are affirmed.
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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed July 30, 1998 to the following parties:
Julia S. Poole, 204 W. 6th St., Palisade, CO 81526
Rocky Mountain Nurses, Inc., 225 N. 5th St., Ste. 215, Grand Junction, CO 81501-2653
Colorado Compensation Insurance Authority, Attn: Laurie A. Schoder, Esq. (Interagency Mail)
Gudrun Rice, Esq., 101 South Third St., Ste. 265, P.O. Box 3207, Grand Junction, CO 81502 (For the Claimant)
Scot J. Houska, Esq., 415 Branch Drive, Grand Junction, CO 81503
BY: _______________________