Opinion
W.C. No. 4-245-240
May 5, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Martinez (ALJ) which determined that the claimant suffered compensable injuries while driving to work, and awarded benefits. The respondents contest the ALJ's determination that the injuries arose out of and in the course of the claimant's employment. We affirm.
As argued by the respondents, an injury arises out of and in the course of employment when there is a sufficient "nexus" between the circumstances under which the claimant usually performs his employment and the activity which caused the injury, so that the activity may be considered incident to the employment. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). Under the general rule, injuries sustained while traveling to work fall within the "going to and coming from rule," and are not compensable. Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2 (1967); Perry v. Crawford Co., 677 P.2d 416 (Colo.App. 1983). However, exceptions exist where "special circumstances" demonstrate a nexus between the travel and the circumstances of the employment. Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo. App. 92, 554 P.2d 705 (1976).
One recognized exception to that rule exists when the employer requires the claimant to travel. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995); Wild West Radio, Inc. v. Industrial Claim Appeals Office, 905 P.2d 6 (Colo.App. 1995); Tatum-Reese Development Corp. v. Industrial Commission, 30 Colo. App. 149, 490 P.2d 94 (1971). The essence of the travel status exception is that when the employer requires the claimant to travel, the risks of the travel become the risks of the employment. Martin K. Eby Construction Co., Inc. v. Industrial Commission, 151 Colo. 320, 377 P.2d 745 (1963). The travel status rule exists because, where the duties of employment require the claimant to travel beyond a fixed location established for the performance of the employment duties, the claimant must encounter risks not generally encountered by workers going to and from work. See 1 Larson, Workmen's Compensation Law, § 16.01 (1996); O.P. Skaggs Co. v. Nixon, 101 Colo. 203, 72 P.2d 1102 (1937).
The determination of whether a claimant is 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, supra. 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. (1996 Cum. Supp.); Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). Furthermore, application of the substantial evidence test requires that we defer to the ALJ's credibility determinations, his assessment of the sufficiency of the evidence, and his resolution of conflicts in the record. See Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Here, the ALJ determined that the claimant was a traveling employee who was on travel status at the time of his injuries. In so doing, the ALJ found the claimant's testimony credible and persuasive, and expressly resolved conflicts in the testimony against the respondents. See Conclusions of Law 3.
The claimant testified that in November 1994, he was employed by Staff Administrators, Inc. and working on a job for Armendariz Construction (Armendariz), whose business office is located in Delta, Colorado. The claimant stated that on November 28, 1994, Armendariz assigned him to work at a construction site in Piceance Creek, Colorado, which is approximately ninety miles from Grand Junction, where he resides. The claimant testified that it was the practice of Mr. Armendariz, the owner of the construction company, to have his workers meet at a convenience store located on the I-70 business loop in Grand Junction where they would "fuel up" at his expense before driving to an out-of-town job site. The claimant stated that pursuant to instructions from Mr. Armendariz, he was supposed to be at the convenience store at 7:00 a.m on November 28. However, on November 28 the claimant was late, and did not reach the convenience store before the other workers had left. Therefore, the claimant proceeded to drive his personal vehicle from the convenience store to the job site, and was injured in a motor vehicle accident.
Based upon this testimony, the ALJ found that Armendariz required the claimant to perform services at a substantial distance from its place of business and the claimant's home. Further, the ALJ determined that the claimant's employment included an expectation that the claimant was willing to travel as part of the job. Accordingly, the ALJ determined that the risks of the travel on November 28 became the risks of the claimant's employment, and thus, the claimant's accident fell with the travel status exception to the general rules of compensability.
On review, the respondents contend that the claimant does not meet the definition of a traveling employee. The respondents also contend that this claim does not fall within the travel status exception because the claimant's travel did not confer a benefit on the employer. We reject these arguments.
Contrary to the respondents' argument, an employee is not required to be away from home overnight, or reimbursed for food, lodging and other transportation expenses to be considered a traveling employee. Phillips Contracting, Inc. v. Hirst, supra, citing Wright v. Industrial Commission, 62 Ill. 2d 65, 338 N.E.2d 379 (Ill. 1975) (holding that an hourly-wage construction worker at a specific job site was a traveling employee); Madden v. Mountain West Fabricators, Inc., W.C. No. 4-242-293, August 29, 1996. To the contrary, the claimant in Phillips Contracting, Inc., was found to be a traveling employee simply based upon the fact that he was hired in Texas and required to travel to a job site in Colorado.
Furthermore, the pertinent issue to an application of the travel status exception is whether the employer expressly or impliedly required the claimant to travel. O.P. Skaggs Co. v. Nixon, supra. This is true because if travel is required, it necessarily becomes part of the employee's service to the employer, and thus, inherently benefits the employer and the business of the employer. See Colorado Civil Air Patrol v. Hagans, 662 P.2d 194 (Colo.App. 1983); Dynalectron Corporation v. Industrial Commission, 660 P.2d 915 (Colo.App. 1982).
Moreover, as the respondents recognize, the travel status exception is applicable to circumstances where the claimant has no discretion or choice in the mode of coming to work. O.P. Skaggs Co. v. Nixon, supra. Under such circumstances, the risks of the claimant's travel to work are not the same as the risks for any employee engaged in a daily commute.
The ALJ's findings of fact indicate that neither the claimant's residence nor the business office of Armendariz were located in Piceance Creek. Therefore, the claimant's job assignment in Piceance Creek necessarily required him to travel.
Further, Mr. Armendariz admitted that for out-of-town job assignments he required his workers meet at a particular convenience store so they could ride together, and get gasoline. (Tr. p. 50). It could be argued that this requirement inherently benefited Armendariz by reducing the number of vehicles he would have to fuel at the expense of Armendariz and incurring all such gasoline expenses at one location.
We also note Mr. Armendariz's admission that after getting fuel, the workers usually followed him to the job site. (Tr. pp. 16, 52, 54, 55). It follows that Armendariz limited the claimant's mode of travel to work on November 28 by requiring him to meet at the convenience store. Furthermore, this requirement reduced the claimant's discretion in choosing the travel route to the job site. Consequently, we perceive no error in the ALJ's determination that the claimant's injuries are compensable under the travel status exception.
IT IS THEREFORE ORDERED that the ALJ's order dated November 18, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Bill WhitacreNOTICE
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, 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed May 5, 1997 to the following parties:
Archie W. Reynolds, 2753 D. Road, Grand Junction, CO 81501
Staff Administrators, Inc., 12075 E. 45th Ave., Denver, CO 80239
Liberty Mutual Insurance Company, 13111 E. Briarwood Ave., Ste. 100, Englewood, CO 80112
Raymond Melton, Esq., 1120 Lincoln St., Ste. 1606, Denver, CO 80203 (For the Respondents)
J. Keith Killian, Esq., Gregg Van DeMark Esq., P.O. Box 4848, Grand Junction, CO 81502 (For the Claimant)
BY: _______________________