Opinion
W.C. No. 4-147-998
April 9, 1996
FINAL ORDER
The Colorado Compensation Insurance Authority (CCIA), and its insured, Advanced Concrete Construction (respondents) seek review of orders entered by former Administrative Law Judge Kubitschek (ALJ Kubitschek), and Administrative Law Judge Hopf (ALJ Hopf). We affirm the order of ALJ Kubitschek, reverse ALJ Hopf's order in part and affirm ALJ Hopf's order in part.
On February 2, 1994, ALJ Kubitschek entered an order which determined that the claimant sustained a compensable injury arising out of and in the course of his employment on August 7, 1992. ALJ Hopf subsequently entered an order dated January 4, 1995, which awarded temporary disability benefits, permanent partial disability benefits and medical benefits pursuant to Grover v. Industrial Commission, 759 P.2d 705 (Colo. 1988). ALJ Hopf also ordered the CCIA to reimburse the West American Insurance Company (West American) for Personal Injury Protection (PIP) benefits paid to the claimant in connection with the industrial injury. The respondents petitioned for review of the February 2 and January 4 orders on January 24, 1995.
I.
The respondents contend that ALJ Kubitschek erred in finding that the claimant's injuries arose out of and in the course of his employment. We disagree.
A.
Initially, we reject the claimant's contention that we lack jurisdiction to review ALJ Kubitschek's order. An order is not subject to review unless it "requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty." Section 8-43-301(2), C.R.S. (1995 Cum. Supp.). Furthermore, orders which determine liability for benefits, without determining the amount of benefits, do not award or deny benefits as contemplated by § 8-43-301(2). Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989); C F I Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982). Orders which do not require the payment of benefits or penalties, or deny the claimant benefits or penalties are interlocutory. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989).
ALJ Kubitschek's order does not award or deny any benefit or penalty. In fact, no benefits or penalties were requested. Rather, the sole issue before the ALJ was whether the claimant suffered a compensable injury. Accordingly, ALJ Kubitschek's order did not become "final" by virtue of the respondents failure to file a petition for review within twenty days of February 2, 1994. To the contrary, ALJ Kubitschek's order was not a final, appealable order until the entry of ALJ Hopf's award of benefits on January 4, 1995. Consequently, the respondents' January 24, 1995, Petition for Review is a timely appeal of both orders and thus, affords us jurisdiction to review ALJ Kubitschek's order. Section 8-43-301(2); Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984) .
B.
In view of our conclusion that the respondents' statutory right to appeal ALJ Kubitschek's order did not arise until after the entry of ALJ Hopf's order, we do not consider the respondents' January 24 petition for review of ALJ Kubitschek's order to violate the provisions of § 8-43-301(14), C.R.S. (1995 Cum. Supp.). Therefore, we deny the claimant's request for costs and attorney fees.
C.
Alternatively, the claimant contends that ALJ Kubitschek did not issue "specific findings of fact" as required by § 8-43-215 C.R.S. (1995 Cum. Supp.), and therefore, the claimant argues that it is premature to review ALJ Kubitschek's order. However, ALJ Kubitschek's February 2 order is entitled "Findings of Fact, Conclusions of Law and Order," and is expressly based upon the stipulated facts submitted by the claimant and the respondents. Under these circumstances, we consider the February 2 order sufficient to satisfy the requirements of § 8-43-215, and we shall proceed to consider the respondents' substantive arguments.
D.
As the respondents' recognize, an injury is compensable if it "arises out of" and "in the course of" the employment. Section 8-41-301(1)(b), C.R.S. (1995 Cum. Supp.); Wild West Radio, Inc. v. Industrial Claim Appeals Office, 905 P.2d 6 (Colo.App. 1995), cert. denied November 6, 1995. The "in the course of" 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, 383 (Colo. 1991).
An employee whose work requires travel away from the employer's premises is held to be within the course of employment continuously until the travel is completed. Silver Engineering Workers, Inc. v. Simmons, 180 Colo. 309, 505 P.2d 966 (1973); Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995). Furthermore, there is no distinction between an employee who must travel to a specific location for a period of time and an employee who travels from site to site on a daily basis. Phillips Contracting, Inc. v. Hirst, supra, citing Wright v. Industrial Commission, 62 Ill.2d 65, 338 N.E.2d 379 (Ill. 1975) (holding that an hourly-wage construction worker at a specific job site is a traveling employee).
Because the determination of whether the claimant was a traveling employee is factual in nature, we must uphold the ALJ's findings which are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Wild West Radio, Inc. v. Industrial Claim Appeals Office, supra. Insofar as the evidence is subject to conflicting inferences, we are bound by the plausible inferences the ALJ drew from the record. Suetrack USA v. Industrial Claim Appeals Office, 902 P.2d 854 (Colo.App. 1995).
The stipulated facts, which were the basis of the ALJ's order, reveal that the claimant's employment for Advanced Concrete Construction (employer) required him to work at a job site away from the employer's premises. After work on August 7, 1992, the claimant got a ride from the job site back to the employer's premises, in one of the employer's vehicles. While en route to the employer's premises, the driver noticed another company vehicle stranded in traffic and decided to tow the stranded vehicle back to the employer's premises. The claimant remained in the vehicle and was injured when the vehicle being towed struck the back of the vehicle in which he was riding.
ALJ Kubitschek determined that, on the date of the injuries, the claimant intended to leave work from the employer's premises and was en route from the job site to the employer's premises when he was injured. This finding reflects ALJ Kubitschek's implicit determination that, at the time of the injuries, claimant was in travel status until he reached the employer's premises, and this finding is a plausible interpretation of the stipulated facts. Therefore, the ALJ's findings support a conclusion that the claimant's injuries occurred in the "course of" his employment.
Moreover, even if we accept the respondents' argument that the claimant's injuries occurred after work, the record does not compel a conclusion that the claim falls within the general rule that injuries occurring "coming to and going from" work are not compensable. The respondents' concede that such injuries are compensable if "special circumstances" exist which demonstrate a nexus between the injuries and the employment. Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo. App. 92, 554 P.2d 705 (1976); Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2 (1967); Perry v. Crawford Co., 677 P.2d 416 (Colo.App. 1983). Such special circumstances have been found where the claimant's travel is at the implied or express direction of the employer and the employer receives some special benefit from the travel. Monolith Portland Cement v. Burak, 772 P.2d 688 (Colo.App. 1989).
Here, the stipulated facts suggest that the employer gave implied permission for employees to use company vehicles to transport employees from the job site to the employer's premises. Further, a factfinder could logically infer that the employer received a special benefit by having its stranded vehicle towed to its premises by the driver of the vehicle in which the claimant was riding. Therefore, we disagree with the respondents' argument that there is no evidence of "special circumstances" in this claim.
II.
Next, the respondents challenge ALJ Hopf's award of medical benefits. We agree with the respondents' argument that this issue was not properly before the ALJ for resolution, and therefore, we set aside ALJ Hopf's award of medical benefits.
A.
At the commencement of the hearing, ALJ Hopf sought clarification concerning the "medical benefit" issue which was endorsed for hearing. Counsel for West American stated that the disputed issue concerned CCIA's liability to reimburse West America for medical expenses previously paid to the claimant. (Tr. p. 4). Counsel for the CCIA stated that it sought to dispute the "reasonableness and necessity" of the medical expenses paid by West America, and whether the payments exceeded their liability under the medical fee schedule. (Tr. pp. 5, 6). In response, West America said it did not have adequate notice to litigate the "reasonableness" issue. (Tr. p. 10). Consequently, ALJ Hopf stated that the issue of medical benefits would not be considered, and that the only issues to be considered were permanent partial disability and penalties. (Tr. p. 10).
The record indicates that the ALJ reserved for a future determination, the respondents' duty to reimburse West American for medical expenses. Therefore, due process considerations compel us to set aside ALJ Hopf's order insofar as she required the CCIA to reimburse West American for medical expenses. See Hendricks v. Industrial Claim Appeals Office, 809 P.2d 1076 (Colo.App. 1990).
B.
Similarly, ALJ Hopf erred in ordering the CCIA to provide Grover medical benefits. The claimant did not request Grover medical benefits either at the commencement of the hearing or in his closing argument. (Tr. pp. 3, 19-22). Rather, the claimant repeatedly stated that the only issues before the ALJ were permanent partial disability benefits and penalties. (Tr. pp. 3, 9). The claimant only requested that the issue of medical benefits remain open to secure payment on two medical bills for prior treatment. (Tr. p. 8). Therefore, we modify ALJ Hopf's order to set aside the award of Grover medical benefits.
III.
Lastly, the respondents contest ALJ Hopf's order which requires the CCIA to reimburse West American for PIP benefits paid to the claimant for "lost wages." The respondents argue that their liability for the reimbursement of previously paid "lost wages" is limited by their liability for temporary disability benefits, and that West American's payment of "lost wages" in the amount of $16,383.38 exceeds their liability for temporary disability benefits. Therefore, the respondents argue that ALJ Hopf erred in requiring them to pay West American $16,383.38. We conclude that the respondents waived this argument.
The respondents' liability for "lost wages" is defined by the Workers' Compensation Act (Act). PIP coverage does not expand the respondents' liability. Therefore, we agree with the respondents that, under the Act, they are only required to reimburse West American in an amount which reflects their liability for temporary disability benefits. See Tate v. Industrial Claim Appeals Office, 815 P.2d 15 (Colo. 1991) ; Oxford Chemicals Inc., v. Richardson, 782 P.2d 843 (Colo.App. 1986).
However, to the extent that the respondents argue that $16,383.38 exceeds their liability for temporary disability benefits, we agree with West American that this argument was not raised before the ALJ. (Tr. p. 6). Therefore, it may not be raised for the first time on appeal. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
At hearing, counsel for West American stated that she was seeking reimbursement for "lost wages" pursuant to the parties "Stipulation of Facts." The written Stipulation indicates that West American paid lost wages for 52 weeks based upon the formula set forth in § 10-4-706(d), C.R.S. (1993 Cum. Supp.), using an average weekly wage of $ 469.95 for a total of $16,383.38. (Tr. p. 31); Stipulation of Facts, no. 4. Counsel for the respondents stated that there was no dispute concerning the reimbursement of "wage loss" benefits owed to West American. (Tr. pp. 4, 10, 16). Furthermore, in closing argument, the respondents did not request an order for reimbursement in an amount less than $16,383. 38. (Tr. pp. 22-24). Accordingly, we conclude that the respondents waived any dispute that they owe West American less than $16,383.38 for "lost wages." Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987) (failure to object was waiver of objection to litigation of issue).
IT IS THEREFORE ORDERED that ALJ Kubitschek's order dated February 2, 1994, is affirmed.
IT IS FURTHER ORDERED that ALJ Hopf's order dated January 4, 1995 is set aside insofar as it requires the respondents to reimburse West American for medical benefits in the amount of $2,338.89 and requires the respondents to provide continuing medical benefits. In all other respects ALJ Hopf's order is affirmed.
IT IS FURTHER ORDERED that the claimant's request for costs and attorney fees is denied.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona HalseyNOTICE
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. (1995 Cum. Supp.).
Copies of this decision were mailed April 9, 1996 to the following parties:
Manuel A. Torres, 1547 W. Cedar, Denver, CO 80223
Advanced Concrete Construction, 3647 S. Santa Fe., Englewood, CO 80110
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq. (Interagency Mail)
A. Peter Gregory, Esq., 5299 DTC Blvd., Ste. 1130, Englewood, CO 80111 (For West American)
William J. Crichton, III, Esq., 662 Grant St., Denver, CO 80203 (For the Claimant)
BY: _______________________