Opinion
W.C. No. 4-643-153.
September 14, 2006.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) dated April 3, 2006 that denied and dismissed the claim. We reverse and remand for a determination of the benefits and compensation payable to the claimant.
A hearing was held on the issues of the compensability of the claim, and the claimant's entitlement to medical benefits and temporary disability benefits. Following the hearing the ALJ entered factual findings that may be summarized as follows. The claimant, who resided in Louisiana, was working on a construction crew in Texas for A L Underground, a Kansas company. In July 2004 the respondent employer contacted the claimant by telephone and inquired whether he was interested in working for the employer. The claimant's employment with A L Underground ended on July 20, 2004, and on July 26, 2004, the claimant completed the employment application process at the respondent employer's office in Farmington, New Mexico. The claimant was not paid for his travel from Texas to New Mexico, nor was he reimbursed for any expenses in connection with that travel. The respondent employer hired the claimant to work on a job near Durango, Colorado. The employer paid him hourly wages in addition to a subsistence allowance and "pick up pay," which was on account of his use of his personal truck on the job. The subsistence pay was provided by the employer to attract job candidates from out of state. After accepting the job, the claimant elected to live at the Durango RV Park. On August 21, 2004 the claimant began to experience flu-like symptoms that were determined to be caused by the West Nile virus, which is mainly transmitted by the Culex Tarsalis mosquito and which has an incubation period in humans of three to 14 days. The ALJ weighed the expert and lay testimony and found that it was not probable that the claimant was bitten by an infected mosquito while the claimant was on the job during working hours. Rather, the ALJ found that it was probable that he was bitten on the grounds of the RV camp.
Based upon the factual findings the ALJ concluded that the claimant failed to carry his burden of showing a compensable injury. The ALJ concluded that the claimant was not in travel status and also that he failed to show that the injury occurred while he was working on the construction project. Accordingly, the ALJ denied and dismissed the claim.
The claimant appealed and contends that the ALJ erred in ruling that he was not in travel status while employed in Colorado. Because he was in travel status, the claimant then argues that his injury was compensable absent a showing by the employer that it occurred during a personal deviation from that travel status. We agree with the claimant's argument.
In its narrow sense travel status is an exception to the general rule that a claimant who is injured while going to or coming from work does not qualify for recovery because such travel is not considered to be performance of services arising out of and in the course of employment. See e.g., Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). Under Madden the determination of whether a traveling employee's injury warrants the exception from the "going and coming rule" depends upon consideration of a number of variables such as whether the travel occurred during working hours, whether it occurred on the employer's premises, whether the travel was contemplated by the employment contract, and whether the employment created a "zone of special danger" out of which the injury arose. Madden, 977 P.2d at 864. See also Staff Administrator, Inc. v. Reynolds, 977 P.2d 866 (Colo. 1999).
Here, the ALJ weighed the factors articulated in Madden, noting that the injury neither occurred during working hours nor on the employer's premises. The ALJ also concluded that the claimant's job created no "zone of special danger" within the meaning of Madden. In weighing whether the employment contract contemplated that the claimant would travel, the ALJ appeared to focus largely on whether the claimant was on an overnight "business trip" at the request of the employer. Finding that he was not on an overnight business trip, the ALJ concluded that the claimant was therefore not in travel status. However, in weighing the factors set forth in Madden the ALJ's application of the travel status doctrine was overly narrow.
The doctrine of travel status also applies in a broader sense to employees who travel away from home in order to work in a temporary position or on a temporary project. This form of the doctrine is typified by Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995). In Hirst the claimant was not merely traveling to or from work and, therefore, travel status as an exception to the going and coming rule was not relevant. Rather, the claimant was an out-of-state employee on a Colorado road crew, employed by a Texas corporation which had contracted with Colorado to install road signs, guardrails, and fencing. The claimant was hired in Texas and transported by the employer to Colorado to work on the project. He and the other crew members were housed in a hotel or in other temporary quarters. On a Saturday a co-worker and the claimant obtained permission to drive a company truck to a nearby town in order to launder their clothes and to purchase clothing for the upcoming winter. They completed the personal errands and stopped at a bar prior to returning to their residences. After leaving the bar they were involved in a motor vehicle accident, which severely injured the claimant. The court held that the claimant's injuries were compensable on the ground that he was a traveling employee under continuous coverage. In concluding that the claimant was in travel status continuously while living in Colorado, the court expressly rejected the argument that because the job was scheduled to last for three or four months the claimant had relocated to Colorado rather than only temporarily traveled there. In this regard the court noted that there was no evidence that the claimant intended "permanently to relocate to Colorado."
Hirst states the applicable legal principles that control in this case. In our view the dispositive factual findings here were that the claimant permanently resided in Louisiana, that he was working in Texas when he was solicited to apply to work on a construction project in Colorado, that he accepted and temporarily relocated to Colorado to work on the project, and that he received "subsistence" pay to attract him from out of state to the job in Colorado. Moreover, in our view it is significant that the ALJ did not find that the claimant had permanently moved to Colorado, or that the job with the respondent employer was permanent or even intended to last longer than the completion of the "project." In our view, these findings compel the conclusion under Hirst that the claimant was in travel status while working on the employer's project in Colorado.
We are unpersuaded by the respondents' arguments distinguishing Hirst from the present case. The respondents note that in Hirst the claimant had been hired before he traveled to Colorado to work on the construction project, while in the present case the claimant traveled from Texas to New Mexico in order to apply for the position in Colorado. However, the ALJ found that the employer here solicited the claimant's application and that the claimant traveled from Texas as a result of the employer's invitation to work on the project. Under these circumstances, whether the claimant was in travel status under Hirst does not depend on whether the contract of hire was completed before the claimant left his home or when he arrived in New Mexico. The controlling factor under Hirst was that he was temporarily relocated in Colorado to work on the construction project.
Finally, in our view, that the claimant was in travel status compels the further conclusion that his contraction of West Nile virus was compensable. An employee in travel status is continuously covered by the Workers' Compensation Act, "except when the employee makes a distinct departure on a personal errand." Hirst, 905 P.2d at 11. Further, where a personal deviation is asserted, the issue is whether the activity giving rise to the injury constituted a deviation so substantial as to remove it from the employment relationship. Hirst, 905 P.2d at 12. The burden was on the employer to show that the claimant made a departure from the scope of employment while in travel status. Pacesetter Corporation v. Collett, 33 P.3d 1230 (Colo.App. 2001). The applicable law thus appears to be that any injury incurred while in travel status is compensable unless the employer carries its burden of showing that it occurred during a personal deviation. See Continental Airlines v. Industrial Commission, 709 P.2d 953 (Colo.App. 1994); Silver Engineering Works v. Simmons, 180 Colo. 309, 505 P.2d 966 (1973); Upchurch v. Industrial Commission, 703 P.2d 628 (Col. App. 1985); Thompson v. Trans Colorado Gas/Gregory Cook Construction Co., W.C. No. 4-396-799 (February 10, 2000). Here, there was no evidence from which the ALJ could have inferred that the insect bite occurred during a personal deviation. Consequently, the ALJ's findings compel the conclusion that the injury occurred during the "continuous coverage" conferred on the claimant by the travel status doctrine, and the insect bite was compensable.
IT IS THEREFORE ORDERED that the ALJ's order dated April 3, 2006, is reversed and the matter remanded for determination of the benefits and compensation payable to the claimant.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Randall Burch, Oak Grove, LA, Robert Baker, Flint Energy Services, Inc., Tulsa, Ok, Mike Ketter, Liberty Mutual Insurance Company, Irving, TX, J.J. Fraser, Denver, CO, (For Claimant).
Jonathan S. Robbins, Esq., Denver, CO, (For Respondents).