Opinion
W.C. No. 4-582-425.
September 9, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimant failed to prove a compensable injury. We affirm.
The ALJ's findings are undisputed. The respondent-employer's corporate office is located in Nebraska but the employer maintains a regional office in Denver. The claimant, who resides in Colorado Springs, was hired to work as a sales agent in Colorado Springs. However, for the first 90 to 120 days of the employment, the claimant was required to attend training classes in Denver. The claimant was provided a work area, telephone, and computer in the Denver office during the training. The claimant also was provided a one-hour lunch break each day, but the regional office did not have a cafeteria and the employer did not control the claimant's activities during lunch or pay the claimant for the lunch break.
The claimant suffered injuries during a lunch break on May 29, 2003. The claimant left the regional office and walked to a restaurant. While walking back to the office after lunch, the claimant tripped on the sidewalk in front of the employer's office.
The ALJ rejected the claimant's contention that he was a "traveling employee" as a result of his daily travel from Colorado Springs to the employer's regional office. Instead, the ALJ found the claimant's daily commute from Colorado Springs to Denver was similar to the commute required by the injured worker in Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). Further, the ALJ determined the claimant failed to prove special circumstances sufficient to establish a causal connection between the lunch break travel and the employment. Therefore, the ALJ denied and dismissed the claim for workers' compensation benefits.
On appeal the claimant renews his contention that travel was contemplated by the employment contract because he was hired to work in Colorado Springs, but was required to travel from Colorado Springs to Denver to attend the training classes. Therefore, the claimant argues he was a traveling employee who remained in the course of employment during the lunch break even though he was not paid for the break. We are not persuaded there is any error in the ALJ's order.
To prove a compensable injury the claimant is required to establish that the injury arose "out of and in the course of" employment. Generally, injuries sustained by employees going to and from work are not compensable because such travel is not considered to occur in the course of the claimant's employment. Madden v. Mountain West Fabricators, supra; Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 212 (Colo. 1967). This includes injuries sustained off the employer`s premises during a lunch break. A. Larson, Larsons Workers' Compensation Law, § 13.05[4] (2003). However, such injuries are compensable if "special circumstances" exist which demonstrate a nexus between the injuries and the employment. Berry's Coffee Shop, Inc. v. Palomba, supra.
In Madden, the court listed four factors which are relevant in determining whether "special circumstances" have been established that 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. The Madden court recognized that travel may be part of the service to the employer if it is at the express or implied request of the employer. In such cases the claimant is said to be in "travel status." Id. at 865.
The essence of the travel status exception to the "going to and coming from" rule is that when the employer requires the claimant to travel beyond a fixed location established for the performance of his duties, the risks of such travel become risks of the employment. Staff Administrators Inc., v. Industrial Claim Appeals Office, 958 P.2d at 511; Martin K. Eby Construction Co. v. Industrial Commission, 151 Colo. 320, 377 P.2d 745 (1963). Accordingly, an employee in travel status is under continuous workers' compensation coverage unless engaged in a distinct departure on a personal errand Phillips Contracting, Inc. v. Hirst, 905 P.2d 9, 11-12 (Colo.App. 1995). Evidence that an employer paid for transportation or provided lodging and meals is indicative of travel status. Phillips Contracting, Inc. v. Hirst, 905 P.2d at 12.
The determination of whether a claimant was a traveling employee who was on travel status at the time of an injury is a question of fact for resolution by the ALJ. Wild West Radio, Inc. v. Industrial Claim Appeals Office, 905 P.2d 6 (Colo.App. 1995). Because it is factual in nature, the ALJ's determination must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003; Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
In Madden 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 car pool 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. Moreover, the construction site was Madden's fixed work site for that phase of the employment. Under these circumstances, the court concluded travel was not a substantial part of the service Madden performed for the employer and 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.
Here, as in Madden, the claimant was not injured during work hours or on the employer's premises. Further, the claimant's travel did not confer a benefit on the employer apart from the claimant's arrival to the regional office because the claimant was not required to use his vehicle during the training session. We also note that although the regional office was not the claimant's permanent work site, it was the claimant's fixed work station during the 120-day training period. These circumstances support the ALJ's determination that the facts are similar to Madden and that travel was not contemplated by this employment.
Moreover, the employer did not insert itself into the lunchtime activities of the claimant and the employer received no direct benefit from the claimant's lunchtime activities. Rather, the claimant's circumstances are not distinguishable from the multitude of other employees who daily leave their offices in search of lunch. Perry v. Crawford Co., 677 P.2d 416, 418 (Colo.App. 1983). Therefore, the ALJ did not err in finding the claimant failed to establish special circumstances sufficient to prove the injuries arose out of the employment.
IT IS THEREFORE ORDERED that the ALJ's order dated May 6, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________ Kathy E. Dean
____________________ Bill Whitacre
Raymond W. Haley, Colorado Springs, CO, InfoUSA, Inc., Denver, CO, InfoUSA, Inc., Omaha, NE, St. Paul Fire Marine Insurance Company, St. Paul, MN, St. Paul Fire Marine Insurance Company, Denver, CO, Martin D. Kuhn, Esq., Colorado Springs, CO, (For Claimant).
Douglas W. Poling, Esq., Denver, CO, (For Respondents).