Opinion
W.C. No. 4-397-537
July 16, 1999.
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Rumler (ALJ) which denied her claim for workers' compensation benefits. The claimant contends the ALJ erred in concluding that a break-time injury did not arise out of or in the course of employment. We affirm.
The claimant was employed as a bill collector. The employer allowed the claimant two fifteen minute breaks per day. The claimant was injured during one of her breaks while walking on a public sidewalk approximately one block north of the employer's premises.
The employer provided a breakroom on its premises and an exercise area outside the office building. The employer did not require the claimant to punch out when going on break, nor did it restrict the claimant's activities during breaks.
Under these circumstances, the ALJ determined the employer exercised no control over the claimant's breaks, and the claimant's action in leaving the employer's facility "constituted a deviation from her employment so substantial as to remove it from the employment relationship." The ALJ further found the claimant was not performing any work-related activities when she fell, nor did he employer require any level of physical fitness. Consequently, the ALJ denied the claim for benefits.
Relying on Roache v. Industrial Commission, 729 P.2d 991 (Colo.App. 1986), the claimant contends the evidence establishes that her injury is compensable. The claimant argues the injury occurred during a paid break at a site near the employer's premises. Further, the claimant argues such injuries were "foreseeable" because the employer maintained exercise facilities on its premises. Finally, the claimant argues the break was an "incident of employment" which indirectly benefited the employer because it "refreshed" her and "enhanced her productivity." We are not persuaded.
The claimant was required to prove that her injury "arose out of" and "in the course of" her employment. Section 8-41-301(1)(b), C.R.S. 1998. An injury "arises out of employment" when it has its origin in work-related functions and is sufficiently related thereto to be considered part of the employee's service to the employer. The "course of employment" requirement refers to the time, place, and circumstances under which the injury occurred. L.E.L. Construction v. Goode, 849 P.2d 876 (Colo.App. 1992); rev'd on other grounds, 867 P.2d 875 (Colo. 1994). In order to determine whether the claimant's injury arose out of and in the course of employment the ALJ was required to examine the "totality of the circumstances" and determine if there was a "sufficient nexus between the employment and the injury." City and County of Denver School District No. 1 v. Industrial Commission, 196 Colo. 131, 581 P.2d 1162 (1978). The ALJ's resolution of these issues is factual in nature, and we must uphold her order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998; L.E.L. Construction v. Goode, supra.
In Roache v. Industrial Commission, supra, the Court of Appeals held the 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. 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. In Roache, the 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, substantial evidence supports the ALJ's conclusion that the employer's "control" over the claimant's break was so limited as to negate a finding that the off-premises injury occurred in the course of employment. Unlike the situation in Roache, the employer in this case had no specific rules concerning off-premises breaks. Further, the employer provided on-site facilities for exercise and sustenance, and therefore, exercised no control over risks associated with off-premises breaks. Cf. Price v. Industrial Claim Appeals Office, 919 P.2d 207 (Colo. 1996) (employer exercised no control over employee's home exercise program because it did not furnish equipment or dictate the type of equipment to be used). Moreover, the employer loosely monitored breaks. Consequently, the evidence of the claimant's "personal deviation" from the scope of employment is strong in view of the totality of the circumstances.
Neither can we say the ALJ was required to find the injury had a sufficient "nexus" with the claimant's employment to provide the requisite causal relationship. As the ALJ found, the claimant was not performing any duties of employment at the time she was injured. Neither was she utilizing any facilities provided by the employer, nor acting under actual or implied instructions. Unlike Roache, there is no indication the employer was aware of what the claimant would do on her break, or where she would do it. Cf. Madden v. Mountain West Fabricators, ___ P.2d ___ (Sup.Ct. No. 97SC856, April 12, 1999) (employee's travel did not arise out of employment where it was not assigned by the employer, was not at the expressed or implied request of the employer, nor was it singled out for special treatment); Perry v. Crawford and Co., 677 P.2d 416 (Colo.App. 1983).
It is true there is evidence in the case which might support a finding of compensability. However, the ALJ did not find these facts to be persuasive, and we cannot say she erred as a matter of law when considering the totality of the circumstances.
IT IS THEREFORE ORDERED that the ALJ's order dated February 17, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Robert M. Socolofsky
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed July 16, 1999 to the following parties:
Mary Pargas, 630 Lashley, #C206, Longmont, CO 80501
Bunny Traxinger, Pharmerica, 1971 Lefthand Cir., Longmont, CO 80501
Ron Withers, CNA Risk Management/RSK Co., 600 N. Pearl St., 17th Fl., Dallas, TX 75201
David Levy, Esq., 745 Walnut, Boulder, CO 80302 (For Claimant)
Janice M. Greening, Esq., White and Steele, P.C., 950 17th St., 21st Fl., Denver, CO 80202-2804 (For Respondents)
By: AP