Summary
In Sanchez the claimants worked for a construction company and were typically called and told where to report for work. The claimants had to travel to and from the assigned job site on their own without any provision of transportation, reimbursement of travel costs or car pooling arrangements by the employer.
Summary of this case from Mtr. Claim Miller II v. Cor. Corp. Amer., W.C. NoOpinion
W.C. Nos. 4-551-435 4-552-982
May 19, 2003
FINAL ORDER
In these consolidated workers' compensation cases the claimants seek review of an order of Administrative Law Judge Stuber (ALJ) which determined the claimants failed to prove they suffered compensable injuries and, therefore, denied and dismissed their claims for workers' compensation benefits. We affirm.
The claimants were employed by Accord Human Services (Accord) to perform construction services at the direction of T W Stucco. The claimants were paid on a piecemeal basis for each completed job.
The claimants reside in Colorado Springs. Richard Gonzales (Gonzales) typically called the claimants and told them where to report for work. The claimants had to travel to and from the assigned job site on their own without any provision of transportation by Accord or TW Stucco, reimbursement of travel costs or car pooling arrangements by the employer. Neither were the claimants paid for time spent traveling to and from the job site.
On July 1, 2002, Gonzales told the claimants to report for work in Salida on July 2. On July 2 the claimants drove to the job site in the personal vehicle of Juan Lopez. The claimants worked from approximately 10 a.m. to 6 p.m. While returning to Colorado Springs after work the claimants suffered severe injuries in a motor vehicle accident. The workers' compensation claims were consolidated for hearing and the ALJ entered one order determining both claims.
The applicable law is undisputed. An injury must arise out of and in the course of the claimants' employment to be compensable. Section 8-41-301(2)(b) and (c), C.R.S. 2002. 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.
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). The ALJ's factual determinations must be upheld 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 ALJ found, and it is undisputed, that the accident did not occur in a "zone of special danger," the claimants were not injured during work hours, and the claimants were not injured on the employer's premises. Further the ALJ determined that the claimants' travel was not contemplated by the employment contract, and the travel did not confer a special benefit on the employer. Rather, the ALJ determined the claimants were injured while commuting to and from work under conditions that did not create an exception to the "going to and coming from" rule of compensability. Therefore, the ALJ denied and dismissed the claims.
On review, the claimants contend the ALJ erred in finding their travel was not at the express or implied request of the employer; the travel was not contemplated by the employment contract, and their travel did not confer a special benefit on the employer. In support, the claimants assert that they were told where to travel, there was no regular job site, they contracted for each job separately, they were paid a flat rate and as a condition of the employment they were required to travel. We reject these arguments.
The claimants' arguments were considered and rejected in Madden v. Mountain West Fabricators, supra. The claimants' arguments notwithstanding, the ALJ reasonably inferred that the facts presented here are essentially indistinguishable from those in Madden.
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. Although the employer required the claimant to get to the work site, the court concluded travel was not contemplated by the employment contract because Madden was free to car pool or use any method 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 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 held that Madden's injuries while driving to work were not compensable.
Here, as in Madden, the ALJ found the claimants were injured during travel that did not occur during work hours and was not on the employer's premises. Nor were the claimants earning a wage at the time of the injuries, paid for travel or provided a vehicle by the employer. Further, the claimants were not required to use a personal vehicle to get to work and were free to use any transportation method because they were not required to transport tools or materials to the job site, travel between job sites or perform special errands for the employer after they arrived at the job site. These findings support the ALJ's determination that the claimants' travel did not confer a benefit on the employer beyond the claimants' arrival to work.
Moreover, we perceive no merit to the claimants' contention that their travel conferred a special benefit on the employer because it relieved the employer of maintaining out of town crews. Following the claimants' analysis, every employee who drives from home to work confers a special benefit on the employer by relieving the employer of hiring employees who live within walking distance of the job site. This reasoning is inconsistent with the "going to and coming from" rule and, therefore, is unpersuasive.
The claimants' further contention they were in "travel status" at the time of the injuries has been considered and is rejected. Although the claimants were required to travel to a different site for each job, the claimants were not required to travel between job sites and there was a fixed location for each job. Under these circumstances, the record does not compel the conclusion the claimants were traveling employees at the time of the accident. See Martin K. Eby Construction Co., Inc. v. Industrial Commission, 151 Colo. 320, 377 P.2d 745 (1963); O.P. Skaggs Co. v. Nixon, 101 Colo. 203, 72 P.2d 1102 (1937).
IT IS THEREFORE ORDERED that the ALJ's order dated December 5, 2002, which denied and dismissed claims W.C. No. 4-551-435 and 4-552-982 is affirmed.
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 May 19, 2003 to the following parties:
Juan Lopez, 1940 Doherti Rd., Colorado Springs, CO 80916
Bernardo Sanchez, 3605 Bridgewood Ln., Colorado Springs, CO 80910
Accord Human Resources, 210 Park Ave., #1200, Oklahoma City, OK 73102
American Casualty Company of Reading, Pennsylvania, c/o Ruth Ann M. Kuehl, RSKCo, P.O. Box 17369, Denver, CO 80217
James M. Anderson, Esq., 4905 N. Union Blvd., #302, Colorado Springs, CO 80918 (For Claimant)
John M. Lebsack, Esq., 950 17th St., #2100, Denver, CO 80202 (For Respondents)
BY: A. Hurtado