Opinion
W.C. No. 4-705-673.
April 30, 2008.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated November 23, 2007, that denied and dismissed the claimant's claim for compensation. We reverse and remand for further proceedings.
A hearing was held on the issues of the compensability of the claim and the claimant's possible entitlement to temporary total disability benefits and medical benefits. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant worked in an office complex that consisted of four separate buildings, identified as buildings A, B, C, and D, and separated by a parking lot in the center of the four buildings. Exhibit R. This employer leased office suites in buildings D and B. The claimant worked in building D, which also contained a break room equipped with vending machines. The employer did not lease any space in building C, which contained a coffee shop open to the public. Buildings D and C were separated by a parking lot, which was not owned, leased, maintained, or patrolled by the employer here. Rather, the parking lot was owned by the owner of the complex, which permitted the employees to use the lot, but did not provide the employer with any specific parking spaces or areas for the exclusive use of its employees.
The employer provided its employees with two paid fifteen-minute breaks. Employees were free to leave the premises during these breaks, without restrictions or obligations to the employer during the break. On October 27, 2006, the claimant was in the parking lot on her way from building D to building C in order to patronize the public coffee shop, when she slipped on ice and apparently sustained injuries. Because the employer exercised no control over the claimant's break, because it provided a break room in building D, and because the claimant had "left the employer's premises in Building D" when she was injured, the ALJ found that the claimant was engaged in a "deviation from her employment so substantial as to remove it from the employment relationship." Findings of Fact, Conclusions of Law, and Order at 4, ¶ 16. Accordingly, the ALJ concluded that the claimant's injury did not arise out of her employment, and he denied and dismissed the claim.
The claimant appealed the ALJ's order and argues that the claimant was injured on the equivalent of the employer's "premises" and that such an injury during a short, paid break is compensable. In our view the ALJ's factual findings compel the conclusions that the claimant's activity at the time she was injured was incidental to her employment, and that she was injured on the employer's premises. We therefore agree with the claimant's argument that the factual findings compel a conclusion that the claim is compensable.
In Colorado, only those injuries "arising out of and "in the course of employment," are compensable under the Workers' Compensation Act. Section 8-41-301(1), C.R.S. 2007; In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17 (Colo. 1988). The course of employment requirement is satisfied when the claimant shows that the injury occurred within the time and place limits of the employment. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991). The "time" limits of the employment embrace a reasonable interval before and after official working hours when the employee is on the employer's property. 2 Larson, Workmen's Compensation Law § 21.60(a) (2005); Industrial Commission v. Hayden Coal Co., 113 Colo. 62, 155 P.2d 158 (1944) (an interval up to thirty five minutes has been allowed for the arrival and departure from work). Here, because the claimant was on a paid fifteen-minute break it thus appears undisputed that she was within the "course" of her employment at the time of the injury with respect to the "time" requirements.
Moreover, in our view the claimant was within the "place" limits of her employment at the time of her injury. Because it is supported by substantial evidence in the record we are bound by the ALJ's factual finding that the claimant was injured in the parking lot that separated the four buildings comprising the complex. See Exhibit R. We disagree, however, with the ALJ's determination that the claimant was off the employer's "premises" when she was injured in the parking lot. Under the facts of this case, we conclude that the premises included the parking lot situated between the four buildings.
It is now "practically" universally accepted that a parking lot adjacent to the employer's business is a part of the employer's premises. Professor Larson states that:
As to parking lots owned by the employer, or maintained by the employer for its employees, practically all jurisdictions now consider them part of the "premises," whether within the main company premises or separated from it. This rule is by no means confined to parking lots owned, controlled, or maintained by the employer. The doctrine has been applied when the lot, although not owned by the employer, was exclusively used, or used with the owner's permission, or just used, by the employees of this employer. Thus, if the owner of the building in which the employee works provides a parking lot for the convenience of all tenants, or if a shopping center parking lot is used by employees of businesses located in the center, the rule is applicable.
Larson's Workers' Compensation Law, § 13.04 [2] [a] [b] (emphasis added) (footnotes omitted). In State Compensation Insurance Fund v. Walter, 143 Colo. 549, 354 P.2d 591 (Colo. 1960), the Colorado Supreme Court adopted these principles in upholding an award of compensation to a claimant who was injured while crossing a public street between the employer's parking lot and the employer's shop. The Walter court expressly noted that the "main line of American decisions is to the effect that accidents occurring in or en route to parking lots maintained" by the employer for the employees' benefit arise out of employment. In Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo. App. 92, 554 P.2d 705 (Colo.App. 1976), the court upheld an award to a claimant injured in a parking lot maintained by the employer's landlord. The Woodruff court stated that Walter should not be construed as requiring that the employee be injured "near or on a parking lot owned, maintained, or controlled by the employer." Rather, the Woodruff court considered it sufficient that the parking lot was provided for use by Woodruffs employees, Woodruff was aware its employees used the lot, and the lot constituted "an obvious fringe benefit to claimant." See also Friedman's Market, Inc. v. Welham, 653 P.2d 760 (Colo.App. 1982) (fact that the respondent did not own or control the parking lot does not, as a matter of law, mandate a different result). Further, once a parking lot has achieved the status of "a portion of the employer's premises, compensation coverage attaches to any injury that would be compensable on the main premises." Larson's Workers' Compensation Law, § 13.04 [2] [b].
Here, the undisputed facts were that the four buildings comprising the complex were separated by a central parking lot, which, although not owned or maintained by the employer, was made available for its employees to use. Moreover, it was undisputed that the employees did use the parking lot. Under these circumstances, we conclude that the factual findings compel the determination that the parking lot was a part of the employer's premises, such that the "place" component of the course requirement was satisfied.
The question remains whether the circumstances of the claimant's injury satisfy the "arising out of requirement for compensability. Again, we conclude that the ALJ's factual findings compel the conclusion that the injury arose out of the conditions of the claimant's employment. The "arising out of element is narrower than the "course" element and requires the claimant to prove that the injury had its "origin in an employee's work-related functions and is sufficiently related thereto to be considered part of the employee's service to the employer." Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991). The "arising out of test is one of causation and generally requires that the injury have its origin in an employee's work-related functions and be sufficiently related thereto so as to be considered part of the employee's service to the employer.
It is not necessary, however, that in order to satisfy the arising out of requirement the claimant actually be engaged in performing job duties at the time of the injury. The employee's activity need not constitute a strict duty of employment or even confer a specific benefit on the employer if it is "incidental" to the conditions under which the employee usually performs the job. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); University of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953). For example, injuries sustained on the employer's premises while eating lunch are generally compensable under that doctrine because the employee is at a place she might reasonably be, within the time limits of the employment, and engaged in an activity reasonably incident to the work. In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17, 22-23 (Colo. 1988); Industrial Commission v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952); (Colo. 1988) Ventura v. Albertsons' Inc., 856 P.2d 35 (Colo.App. 1992). It is generally sufficient if the injury arises out of a risk which is reasonably incidental to the conditions and circumstances of the particular employment. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995); See also Price v. Industrial Claim Appeal Office, 919 P.2d 207, 210 (Colo. 1996) (an activity arises out of employment if it is sufficiently "interrelated to the conditions and circumstances under which the employee generally performs the job functions that the activity may reasonably be characterized as an incident of employment"). This includes discretionary activities on the part of the employee which are devoid of any duty component, and are unrelated to any specific benefit to the employer. City of Boulder v. Streeb, supra; L.E.L. Construction v. Goode, 849 P.2d 876 (Colo.App. 1992), rev'd on other grounds, 867 P.2d 875 (Colo. 1994) (claimant sustained fatal compensable injuries while traveling between the job site and the employer's main office to pick up a paycheck).
Actions such as eating, sleeping, resting, washing, toileting, seeking fresh air, getting a drink of water and keeping warm have been held to be incidental to employment under the "personal comfort" doctrine. As an example, injuries sustained on the employer's premises while eating lunch are generally compensable under that doctrine because the employee is at a place he might reasonably be, within the time limits of the employment, and engaged in an activity reasonably incident to the work. In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17, 22-23 (Colo. 1988); Industrial Commission v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952); (Colo. 1988) Ventura v. Albertsons, Inc., 856 P.2d 35 (Colo.App. 1992). Underlying this doctrine is the principle that actions taken to satisfy the employee's "personal comfort" are necessary to maintain the employee's health, and are indirectly conducive to the employer's purposes. See Ocean Accident Guaranty Corp. v. Pallaro, 66 Colo. 190, 180 P. 95 (1919).
Here, in our view, the claimant's activity in walking to the coffee shop in order to buy a snack on her paid break was "incidental" to her employment and falls within the personal comfort doctrine. It follows that we disagree with the ALJ's determination that the claimant was engaged in a "substantial deviation" from her employment. It is true that if an employee substantially deviates from the mandatory or incidental functions of the employment, such that she is acting for her sole benefit at the time of an injury, the injury is not compensable. Kater v. Industrial Commission, 728 P.2d 746 (Colo.App. 1986). See also Callahan v. Nekoosa Papers, Inc., W.C. No. 3-866-766 (May 8, 1989) (claimant working on his car in the employer's parking lot with his own tools was not engaged in an activity incidental to his employment). However, Larson notes that ministerial actions taken for the employee's personal comfort are not a substantial deviation from employment unless the personal need being met is unreasonable, or the means chosen by the employee to satisfy the personal comfort is unreasonable. Larson supra, § 21.00. In Colorado, the employee is considered to remain in the course and scope of their employment while attending to a personal comfort unless the injury results from a "manifestly reckless or unreasonable hazard, amounting to intentional and willful misconduct, or by disregarding, or disobeying, some warning of danger at the place of the injury or prohibition relating to the thing being done either addressed to the workman or promulgated as a general rule of conduct while on the premises." Ocean Accident Guaranty Corp. v. Pallaro, 180 P 95, 97; see also Employers' Mutual Ins. Co. v. Industrial Commission 76 Colo. 84, 230 P. 394 (1924). In our view the record here does not admit of any such determination.
Here, because we conclude that the factual findings compel a determination that the claimant was injured while engaged in an activity incidental to her employment on the employer's premises, the injury was necessarily compensable. We note that the issues of temporary total disability benefits and medical benefits were endorsed for hearing and litigated. Because the ALJ denied and dismissed the claim, he did not resolve the disputed issues of the claimant's entitlement to compensation and benefits. On remand findings of fact and conclusions of law must be entered resolving the remaining issues in light of the compensability of the claim.
IT IS THEREFORE ORDERED that the ALJ's order dated November 23, 2007, is reversed. The matter is remanded for entry of an order resolving the issue of the benefits and compensation, if any, to which the claimant is entitled.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Curt Kriksciun
FLO RODRIGUEZ, LAKEWOOD, CO, (Claimant).
EXEMPLA HEALTHCARE, INC., Attn: MICHELLE HORNING, WHEAT RIDGE, CO, (Employer).
LAW OFFICES OF VINCENT M BALKENBUSH, LLC, Attn: VINCENT M BALKENBUSH, ESQ., ENGLEWOOD, CO, (For Claimant).
THOMAS, POLLART MILLER LLC, Attn: BRAD MILLER, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).
SEDGWICK CMS, Attn: DEBBIE BAIRD/CHRIS MATCHETT, GREENWOOD VILLAGE, CO, (Other Party).
SEDGWICK CMS, Attn: JASON HOUSTON, LEXINGTON, KY, (Other Party 2).