Opinion
W.C. No. 4-594-294.
August 31, 2004.
CORRECTED ORDER
The respondent seeks review of an order of Administrative Law Judge Harr (ALJ) dated March 23, 2004, which determined the claimant suffered a compensable injury and awarded temporary disability benefits. On August 4, 2004, we concluded the ALJ's order was interlocutory because the ALJ did not determine the claimant's temporary disability rate. Therefore, we dismissed the respondent's petition to review without prejudice.
The parties subsequently stipulated to the claimant's temporary disability rate. Based upon that stipulation the parties filed a joint motion which effectively requested the entry of a corrected order. We note that contrary to the parties' contention, our reconsideration of the petition to review does not necessarily promote "judicial economy" because we have only 60 days to review each case certified for review. ( See § 8-43-301(11), C.R.S. 2003). Accordingly, reconsideration of a case at this point in the proceedings may impede our ability to meet statutory deadlines on other cases. Accordingly, a better practice is for the parties to ensure that the order on review is a final order before it is transmitted to us. Nevertheless, we shall grant the parties' request for the entry of a corrected order to consider the respondent's substantive arguments on review. Having done so, we affirm the ALJ's order.
The respondent contends the ALJ erred in finding the claimant's injury arose out of and in the course of employment. We disagree.
The claimant is a level one police offer employed as a jail deputy. The claimant works 12 hour shifts with one 45-minute lunch break. Deputies are allowed to bring a lunch to work or leave the jail to purchase a meal during the lunch break. The respondent's personnel policy provides that deputies "shall be considered on-duty from the beginning of their work day until they are released from duty," which includes meal breaks.
On July 10, 2003, the claimant and a co-worker obtained permission to leave the jail to obtain lunch away from the jail. While driving back to work after lunch the claimant was injured in a motor vehicle accident (MVA).
The ALJ found that at the time of the MVA the claimant and co-worker were both in uniform and the claimant carried a radio to maintain communication with the jail. The ALJ determined the claimant failed to prove she conferred a benefit on the employer by wearing her uniform and carrying the radio during the meal break. However, relying on Roache v. Industrial Commission, 729 P.2d 991 (Colo.App. 1986), the ALJ determined the employer retained sufficient control over the claimant during the 45 meal break that the claimant's employment activities were virtually uninterrupted. In particular, the ALJ relied on evidence the employer considered deputies to be on-duty during meal breaks and paid them during the breaks. The ALJ also determined the claimant was not engaged in a personal deviation during the travel which would remove her from the course of employment. Therefore, the ALJ concluded the claimant's injury is compensable.
On review the respondents contend the ALJ erroneously failed to apply the legal standard announced in Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). We perceive no reversible error.
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). An exception exists 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, supra; Rogers v. Industrial Commission, 40 Colo. App. 313, 574 P.2d 116 (Colo.App. 1978). This includes injuries sustained off the employer's premises during a lunch break. A. Larson, Larsons Workers' Compensation Law, § 13.05[4] (2003).
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). Further, the ALJ's factual determinations are binding if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998).
In Madden v. Mountain West Fabricators, supra, the court cited four factors which may be considered in determining whether there is a sufficient causal relationship between the travel and employment such that resulting injuries may be found compensable. These variables include: (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." The Madden court noted, that the third factor has the potential to encompass many situations, including where travel is singled out for special treatment. Id. at 864-865.
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. Under these circumstances, the court concluded travel was not contemplated by the employment contract. Therefore, the court held Madden's injuries while driving to work were not compensable.
Here, the ALJ did not explicitly discuss the Madden factors. However, we may consider findings which are necessarily implied by the ALJ's order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
It is undisputed the claimant's injury occurred during work hours and off the employer's premises. Further, the ALJ implicitly determined that the claimant's travel was contemplated by the employment contract because the claimant had permission to leave the premises during the meal break and was paid for the lunch break. Further, with record support, the ALJ found the employer exercised additional control over the claimant's conduct by creating an expectation the claimant would immediately return to the jail if requested to do so by a radio transmission. Therefore, the ALJ's findings reflect his determination the claimant established special circumstances between the employment and the off-premises injury under the Madden test.
Moreover, we reject the respondent's contention Roache v. Industrial Commission, supra, is inconsistent with Madden. In Roache the claimant was injured during a 15 minute work break in a convenience store 1 block from the employer's premises. The Roache court concluded that compensability of off-premises injuries incurred during "sustenance breaks" normally raises issues concerning whether the "employer retained control during the break and whether the activity giving rise to the injury constituted a deviation from employment so substantial as to remove it from the employment relationship." Id. at 992-993. Further the court held the relevant factual considerations are whether the break is so short as to support an inference the employment was uninterrupted; whether the employment contract provided for a break; whether the employee was paid for the break; whether the employer permits off-premises breaks; the proximity of the injury to the employment site; and whether the employer restricts off-premises breaks. The respondent's arguments notwithstanding, the considerations are significantly similar to the Madden factors.
As applied, the Roache court found the claimant's off-premises break-time injury was compensable because the employer did not provide on-site break facilities and expressly authorized employees to go off premises to a convenience store to purchase food and drink. The court also relied on the short duration of the break, the proximity of the convenience store, and the fact the purpose of the break was "rest and refreshment."
Here, as in Roache the injury occurred during a relatively brief sustenance break (45 minutes) off the employer's premises, but the claimant remained on the clock during the break and had permission from the employer to leave the premises to get lunch. Furthermore, the claimant did not otherwise deviate from the intended purpose of the travel and was returning to the employment at the time of the MVA. Therefore, the ALJ reasonably inferred that the claimant's travel did not remove her from the course and scope of her employment.
The respondent's further contentions have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated March 23, 2004 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Lisa Kay Lopez, Northglenn, CO, Pam Stonecipher, Boulder County, Risk Management Division, Boulder, CO, Michael H. Kaplan, Esq., Denver, CO, for Claimant.
Patricia Jean Clisham, Esq., Denver, CO, for Respondent.