Opinion
W.C. No. 4-581-613.
May 27, 2004.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which determined the claimant failed to prove a compensable injury and, therefore, dismissed the claim for workers' compensation benefits. We affirm.
The claimant suffered injuries when the vehicle she was driving was rear ended at a stop sign in front of a Safeway store. The Safeway store was located in the same shopping complex as the Texas Roadhouse where the claimant was employed as a waitress. The ALJ's pertinent findings may be summarized as follows.
There are three separate entrances to the shopping center and various parking areas within the complex. The Texas Roadhouse had designated employee parking. However, the claimant and other employees were allowed to park in other areas as long as they did not park in areas that customers were likely to park. Further, the Texas Roadhouse did not require its employees to use any specific entrance to the shopping center and were not required to drive past the Safeway store to access permitted parking areas.
At the time of the accident, the claimant was on her way to work and was driving past the Safeway store to a parking area that was not the area designated by the employer, but was a permitted parking area. Texas Roadhouse did not require the claimant to use her vehicle for work and the Texas Roadhouse had did not own or maintain the area in front of the Safeway store.
Based upon these findings and expressly relying on Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999), the ALJ determined the claimant's injury neither arose out of or in the course of employment. Therefore, the ALJ denied and dismissed the claim for workers' compensation.
Relying on Friedman's Market Inc. v. Welham, 653 P.2d 760 (Colo.App. 1982), and Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo. App. 92, 554 P.2d 705 (1976), the claimant contends the ALJ erroneously determined the accident was not compensable. In support, the claimant contends she was driving on a normal route to an area where she could park consistent with the employer's parking policy. We perceive no reversible error by the ALJ.
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 her job functions. Price v. Industrial Claim Appeals Office, 919 P.2d 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). The "course of employment" requirement is satisfied when it is shown that the injury occurred within the time and place limits of the employment relationship.
In Friedman's Market Inc. v. Welham, supra, the claimant was fatally injured while crossing a set of railroad tracks which separated the employer's premises from the parking lot used by the claimant. The Welham court concluded that the claimant's injuries were compensable even though the parking lot was neither, owned, controlled or maintained by the employer; because the employer purposely intervened in the claimant's personal choice of parking by prohibiting employees from parking in the private or public parking lots adjacent to its premises. Id. at 762.
In Woodruff World Travel, Inc. v. Industrial Commission, supra, parking was provided free of charge to Woodruff World Travel Inc. employees, but Woodruff had no ownership interest in the parking lot, nor did it control the parking lot. Nevertheless, the court stated that Woodruff was aware its employees used the lot, and concluded the "parking privileges constituted an obvious fringe benefit to claimant." Therefore, the court held that an injury sustained in a parking lot operated by the landlord of the employer was compensable. Id. at 707.
Here, the ALJ was not persuaded the accident occurred while the claimant was in a parking lot owned, maintained or designated by the employer for employees. Rather, the ALJ found the claimant was driving to work and had not yet approached the permitted parking areas. Because the claimant has not provided a transcript of the hearing on December 16, 2003, we are required to presume the ALJ's findings of fact are supported by substantial evidence in the record. See Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Furthermore, the ALJ's findings support the conclusion the claimant failed to establish that this claim is factually similar to the circumstances in Welham or Woodruff. Therefore, it is immaterial whether the employer intervened in the claimant's decision of where to park or the employer derived a benefit from employees not parking in spaces reserved for customers.
In contrast, 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). 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, supra; 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 "coming to and going from work" 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" as where the injury is the result of a "special hazard" which was not shared by the general public. 977 P.2d at 864; see also Woodruff World Travel, Inc. v. Industrial Commission, supra.
Applied here, the ALJ found the claimant's injury did not occur during working hours, did not occur on the employer's premises, the claimant was not required to use her personal vehicle for the employment and the employment did not contemplate travel. Further, the ALJ determined the obligations and conditions of claimant's employment did not create a zone of special danger and both the stop sign and the speed bumps in front of the Safeway store were hazards shared with the general public. The ALJ also determined the claimant was not performing some activity related to her employment at the time of the accident which would make her injuries compensable. In the absence of a transcript, these findings are binding on review and the findings support the conclusion the claimant failed to establish "special circumstances" which would render her injuries while traveling to work compensable.
Finally, we reject the claimant's contention that she was injured in the "course of employment" because the time limits of the employment include a reasonable interval before and after work for the purpose of engaging in activities which are preparatory to the employment, or reasonably incident to the work. See Industrial Commission v. Hayden Coal Co., 113 Colo. 62, 155 P.2d 158 (1944); Ventura v. Albertson's, Inc., 856 P.2d 35, 38 (Colo.App. 1992). The question of what constitutes a reasonable interval is factual and depends on not only the length of time involved, but also "on the circumstances occasioning the interval and the nature of the employee's activity." 2 Larson's Workers' Compensation Law, § 21.06 [1] [a].
Supported by what must be presumed to be substantial evidence in the record, the ALJ determined the claimant was traveling to work at the time of the accident and was not performing any preparatory service or incidental activity at the time of the accident. Nova v. Industrial Claim Appeals Office, supra. Under these circumstances, the ALJ reasonably inferred the claimant failed to prove the injuries occurred during the course of employment. Ventura v. Albertson's Inc., supra. Consequently, the claimant has failed to establish grounds which afford us a basis to grant appellate relief.
IT IS THEREFORE ORDERED that the ALJ's order dated, January 29, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________
David Cain
____________________________________
Kathy E. Dean
Sunnye Lorimore, Colorado Springs, CO, Amy W. Miller, Colorado Springs, CO, Commerce and Industry Insurance Company, c/o Melissa Carter, GAB Robbins, Denver, CO, Renee C. Ozer, Esq., Colorado Springs, CO, (For Claimant).
Matthew C. Hailey, Esq., Denver, CO, (For Respondents).