Opinion
W.C. No. 4-333-882
May 21, 1998
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ), denying his claim for workers' compensation benefits. We affirm.
The claimant was employed by respondent Gilpin Hotel Casino (Gilpin) in Blackhawk, Colorado. The ALJ found that Gilpin maintains two parking lots adjacent to its premises. However, Gilpin prohibits employees, except for upper level management, from parking in either lot. Gilpin maintains this policy as a convenience to its customers.
Because of the policy, Gilpin's employees were required to park in public lots or take the bus to work. The ALJ found that there were two public parking lots, one in Central City, and one in Blackhawk known as the "Miner's Mesa" parking lot.
On the day of the injury, the claimant parked in the Miner's Mesa lot. As he was walking across the lot to catch a shuttle bus to Gilpin's premises, he slipped on the ice and was injured.
Under these circumstances, the ALJ concluded that the claimant's injury did not arise out of and in the course of his employment, and no "special circumstances" justified a finding of compensability. The ALJ reasoned that because the Miner's Mesa lot was a public lot, it did not qualify as a "fringe benefit" provided by the employer. Further, the ALJ determined that Gilpin did not require the claimant to park in the Miner's Mesa lot, and that several alternative methods of reaching the employer's premises were available. Finally, the ALJ found the parking policy did not subject the claimant to any "special hazard" because ice in parking lots "is a normal, everyday occurrence in April in Blackhawk."
On review, the claimant contends his injury is compensable "as a result of the Gilpin's parking policy." Relying principally on Welham v. Friedman's Market, Inc., 653 P.2d 760 (Colo.App. 1982), the claimant reasons that Gilpin's parking policy compelled him to park in the Miner's Mesa lot, and that the ice constituted a "special hazard." We are not persuaded.
Generally, an activity is considered to arise out of and in the course of employment if a sufficient "nexus" exists between the activity and the usual circumstances of the job so that the activity may be considered an incident of employment. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). Each case must be decided with respect to the particular circumstances present, and resolution of the issue is generally one of fact for the ALJ. Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 212 (Colo. 1967); L.E.L. Construction v. Goode, 849 P.2d 876 (Colo.App. 1992), rev'd. on other grounds, 867 P.2d 875 (Colo. 1994).
The prevailing rule is that injuries sustained while going to and coming from work are not considered to have arisen out of and in the course of employment. Staff Administrators, Inc. v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA0910, December 11, 1997). However, the general rule does not apply if the claimant can demonstrate "special circumstances" bringing the trip, or some portion of it, within the scope of employment. Berry's Coffee Shop, Inc. v. Palomba, supra.
In Welham v. Friedman's Market, Inc., the court addressed circumstances in which an employer's "parking policy" was sufficient to bring the decedent's death within the scope of employment. In that case, the employer prohibited its employees from parking in private lots and public spaces adjacent to the employer's premises. As a result, employees were required to park in public lots uphill from the employer's store, or at a lot across the railroad tracks from the employer's premises. The decedent was killed when he was crossing the railroad tracks from the parking lot to the employer's premises.
The Welham court identified two legal theories which supported the conclusion that the decedent's death was compensable. First, the court held that the employer incurred a benefit from the "parking policy," and therefore, the decedent's decision to park in the lot across the railroad tracks could not be regarded as a "purely personal" choice unrelated to the employment. Second, the court concluded that the injury was compensable because the railroad tracks constituted a "special hazard" lying on the "only route, or at least on the normal route," which employees were required to traverse to reach the employer's premises. The railroad tracks constituted a special hazard because the "public did not need to park across the railroad tracks as a result of the employer's parking policy." 653 P.2d at 763.
Because the issue of whether there was a "nexus" between the claimant's employment and his injury is factual in nature, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. This standard of review requires us to defer to the ALJ's resolution of conflict in the evidence, his credibility determinations, and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The claimant's argument notwithstanding, the record does not compel the conclusion that his fall in the Miner's Mesa parking lot was a compensable consequence of a "special hazard" resulting from Gilpin's parking policy. To the contrary, the ALJ found that the claimant's decision to park in the Miner's Mesa lot, although influenced by Gilpin's policy, was not compelled by the employer. To the contrary, the ALJ determined that the claimant had several alternatives including parking in a Central City lot and riding the shuttle bus, parking in public parking spaces in Blackhawk, or riding the bus to work. Under such circumstances, the record contains substantial evidence supporting the conclusion that the Miner's Mesa Lot was not the "only route" or even the "normal route" by which employees reached the employer's premises.
Similarly, the evidence supports the ALJ's inference that ice was not a "special hazard," but was in fact common in Blackhawk during the spring season. The import of the ALJ's finding is that, unlike the railroad tracks in the Welham case, the public would have encountered ice in Gilpin's parking lot just as the claimant encountered ice in the Miner's Mesa parking lot. Cf. Van Buskirk v. Burlington Coat Factory, W.C. No. 3-969-932 (July 19, 1991).
It is true that some evidence in the record could have supported contrary findings and conclusions. However, this possibility affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
Similarly, the record did not compel the ALJ to conclude that there was a sufficient "nexus" between the employer's policy and the claimant's fall in a parking lot. Here, unlike the situation in Welham, the ALJ has found there were numerous alternatives to parking in the Miner's Mesa lot. Thus, the ALJ concluded that Gilpin's parking policy was not sufficiently coercive or limiting so as to remove the claimant's decision to park at Miner's Mesa from the realm of personal choice. We decline the claimant's invitation to substitute our judgment for that of the ALJ concerning this factual inference.
IT IS THEREFORE ORDERED that the ALJ's order dated July 28, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Bill WhitacreNOTICE This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed May 21, 1998 to the following parties:
Scott D. Stanwick, 652 Urban Court B-13, Apt. G-2, Golden, CO 80401
Gilpin Joint Venture, P.O. Box 689, Blackhawk, CO 80422-0689
American Compensation Ins. Co., Attn: Mimi Graupera, 7400 E. Orchard Rd., Ste. 3025, Englewood, CO 80111
Lynn Estes, RTW Colorado, Inc., P.O. Box 6541, Englewood, CO 80155-6541
John D. Beckman, Esq., 350 Indiana St., Ste. 540, Golden, CO 80401 (For the Claimant)
Douglas A. Thomas, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
By: __________________________________________________