Opinion
W.C. No. 4-503-762
November 20, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ) which determined the claimant suffered compensable injuries and awarded workers' compensation benefits. The respondents contend the ALJ erroneously found the injuries arose out of the employment. We agree and, therefore, reverse.
An injury "arises out of and in the course of" employment, and is therefore compensable under the Workers' Compensation Act, when it occurs during an activity which is sufficiently connected to the conditions and circumstances under which the employee usually performs his or her job functions. Price v. Industrial Claim Appeals Office, 919 P.d. 207 (Colo. 1996). The "arising out of" requirement is met when the origins of the injury are work-related, and the injury is sufficiently related to the work to be considered part of the employee's service to the employer. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
Injuries sustained by employees going to and from work are usually not compensable. Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 212 (Colo. 1967). However, there is an exception when "special circumstances" create a causal relationship between the employment and the travel beyond the sole fact of the employee's arrival at work. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999) ; Monolith Portland Cement v. Burak, 772 P.2d 688 (Colo. 1989).
In Madden, the court listed four factors which are relevant in determining whether "special circumstances" have been established which create an exception to the "going to and coming from" rule. These factors are: 1) whether the travel occurred during work hours; 2) whether the travel occurred on or off the employer's premises; 3) whether the travel was contemplated by the employment contract; and 4) whether the obligations or conditions of employment created a "zone of special danger." 977 P.2d at 864. In so doing the court held the common link of examples involving the third variable is that travel is a "substantial part of the service to the employer." 977 P.2d at 865.
The question of whether the claimant presented "special circumstances" sufficient to establish the required nexus is a factual determination to be resolved by the ALJ based upon the totality of circumstances. Staff Administrators Inc., v. Reynolds, 977 P.2d 866 (Colo. 1999); City and County of Denver School District No. 1 v. Industrial Commission, 196 Colo. 131, 581 P.2d 1162 (1978). However, the ALJ's factual determinations are only binding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998).
The claimant was hired on May 30, 2001, to perform a painting job at the Peterson Air Force Base (Base). The employer told the claimant that prior to beginning work on the morning of June 4, 2001, he needed to report to the visitor's gate at the Base and obtain an identification badge (I.D. badge), and he was told he would not be allowed access to the job site without the I.D. badge. Further, the employer told the claimant that some employees obtain their I.D. badge by reporting to the visitor's office early on the first day of work.
The claimant left the employer's office on May 30 and drove home where he had lunch. The claimant then drove to the Base to get an I.D. badge. About a block from the visitor's gate at the Base, the claimant was injured in a motor vehicle accident.
Expressly relying on Madden v. Mountain West Fabricators, supra, the ALJ found the injury did not occur during work hours, or on the employer's premises. The ALJ also found the conditions of the employment did not create a special zone of danger. However, the ALJ found the claimant was injured during a journey that was assigned and directed by the employer. Therefore, the ALJ determined the employment contract contemplated travel.
Further, even though the contract of hire did not provide for the payment of transportation costs or include any special incentive for travel, the ALJ found it was to the employer's "advantage that Claimant have the identification pass on his first day of work so that he would be allowed to proceed to the job site." (Finding of Fact 5). Under these circumstances, the ALJ determined the injuries arose out of the employment.
On review the respondents contend the ALJ erred in finding the employment contemplated travel. We agree.
The claimant was hired to work at a fixed location. There was no evidence the claimant was required to travel. To the contrary, he was only required to appear for work at the Base on the morning of June 4. Once the claimant arrived at the job site, he was not required to drive, travel or use his vehicle for any work on or off the employer's premises.
Further, the employer did not direct the claimant to drive to the Base on May 30 to get the I.D. badge. The ALJ found the claimant was not told to report to the Base to get the I.D. badge at any particular time, and the employer told the claimant he could get the I.D. badge on the morning of June 4. (Finding of Fact 2). Therefore, the record does not support the ALJ's finding that the employer "directed" the claimant's travel on May 30.
Admittedly, the employer did not preclude the claimant from getting the badge before June 4. However, the ALJ's finding that the claimant's travel on May 30 conferred a benefit to the employer is not a plausible inference from the record. Obtaining an I.D. badge was a requirement of the job. Accordingly, the only benefit conferred upon the employer by the claimant's travel was the claimant's availability to work on June 4. Put another way, if the claimant had waited until the morning of June 4 to get the I.D. badge, his travel would have conferred no benefit on the employer aside from his arrival at the work site. We perceive no basis to treat the claimant's travel on May 30 any different than the claimant's travel to work on June 4 especially since there was no express or implied requirement to travel on May 30. Therefore, the ALJ erred in finding the injuries arose out of the employment.
The claimant's failure to prove the requisite nexus between the injuries and the employment is fatal to the claim for workers' compensation benefits. Section 8-41-301(1)(b), C.R.S. 2002. Therefore, the ALJ erred in finding the claimant suffered compensable injuries.
Our conclusions are consistent with Madden, where the claimant was injured in a motor vehicle accident while traveling from his home in Grand Junction, Colorado to a construction site in Rifle, Colorado. The accident occurred approximately one hour before the claimant was to commence his duties as a construction worker and the claimant was not earning wages or paid mileage expenses to drive to work. Because Madden's employment required him to work away from home and away from the employer's place of business, we concluded the employment contract included an expectation the claimant would travel. However, the court disagreed. The court concluded travel was not contemplated by the employment contract because Madden was free to carpool or use any other form of transportation to get to the job site, and once Madden arrived at the job site he was not required to use his own vehicle to perform his job duties. Under these circumstances, the court concluded travel was not a substantial part of the service Madden performed for the employer. Moreover, the court held that Madden's travel on the day of the injuries did not confer a benefit on the employer apart from Madden's arrival at work. 977 P.2d at 866. Therefore, the court rejected our conclusion that Madden's injuries while driving to work were compensable.
We recognize that "special circumstances" may also be found where the injuries occur when the employee is sent on a "special errand" after first reporting to the regular place of business. See Otterstetter v. Burns International and Construction State Service Company, W.C. No. 4-230-1251 (February 14, 1996). However, here the claimant was injured before reporting to work. Indeed the I.D. badge was required before the claimant could being work. Therefore, the facts presented here do not fall within the "special errand" exception to the going to and coming from rule.
In view of our disposition, the respondents' contention the ALJ erroneously awarded temporary total instead of temporary partial disability benefits for lost time in October 2001 is moot. See Duran v. Industrial Claim Appeals Office, 883 P.2d 477 (Colo. 1994) (if resolution of issue cannot have any effect upon an existing controversy, the issue is moot).
IT IS THEREFORE ORDERED that the ALJ's order dated June 10, 2002, is reversed and the claim for workers' compensation benefits is denied and dismissed.
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed ___________November 20, 2002 _______to the following parties:
Larry Clemenson, 5246 Borrego Dr., Colorado Springs, CO 80918
Lovern's Painting, 8 Iowa Ave., Colorado Springs, CO 80909
Kay Rakow, Truck Insurance Exchange, 7535 E. Hampden Ave., #300, Denver, CO 80231
Michael W. McDivitt, Esq., 19 E. Cimarron, Colorado Springs, CO 80903 (For Claimant)
Christian M. Lind, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents)
BY: A. Hurtado