Opinion
W.C. No. 4-446-803
October 23, 2001
FINAL ORDER
Budget Sprinkler and Landscape (Budget) and its insurer, Superior National Insurance Group (collectively referred to as the respondents), seek review of an order of Administrative Law Judge Jones (ALJ) which determined the claimant proved a compensable injury and awarded workers' compensation benefits. We affirm the order in part, set aside part of the order and remand.
The claimant was employed by Budget as a laborer. The ALJ found Budget maintained a number of vehicles for use by its employees to transport employees and equipment to job sites. Because the supply of vehicles was sometimes inadequate to get all the workers and equipment to the work site, the ALJ found employees sometimes had to use their own vehicles. Further, the ALJ found it was Budget's practice to pay employees who assist the employer by using their own vehicles to transport employees to the work site.
On June 9, 1999, the claimant drove his own vehicle to the employer's storage shed where he picked up some equipment for the work to be done that day. The ALJ found Budget was aware the claimant was using his vehicle to transport the equipment to the work site. At the conclusion of the work day the claimant left the work site in his personal vehicle with the tools he picked up from the storage shed. Shortly thereafter the claimant was injured in a motor vehicle accident. After the accident the claimant returned the equipment to the storage shed.
The claimant returned to light duty employment at Budget until September 27, 1999, when he was physically unable to return to work. The claimant then sought an award of temporary disability benefits.
Expressly relying on Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999), the ALJ found the claimant was acting in the course and scope of his employment at the time of the injuries. Specifically, the ALJ found the claimant was returning the employer's equipment to the storage shed and that the claimant's actions inured to the benefit of Budget. Therefore, the ALJ determined the claimant proved a compensable injury.
The ALJ further determined that the claimant's temporary wage loss was to some degree the result of the industrial injury. Therefore, the ALJ ordered the respondents to pay temporary disability benefits commencing June 9, 1999, and ongoing.
I.
On review, the respondents contend the record does not support the ALJ's finding of a compensable injury. We disagree.
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 his or her job functions. Price v. Industrial Claim Appeals Office, 919 P.d. 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 services to the employer. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
It is true that 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. Mountain West Fabricators v. Madden, 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 "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. Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991); City and County of Denver School District No. 1 v. Industrial Commission, 196 Colo. 131, 581 P.2d 1162 (1978) . Therefore, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001; Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Under the substantial evidence standard we must defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.d. 411 (Colo.App. 1995).
Here, the respondents contend the ALJ misapplied the law by focusing the claimant's activity of returning the employer's equipment to the storage shed after the accident instead of evidence that employees utilized their own vehicles so that they could go directly home from the job site rather than returning to employer's shop. The respondents argue that under these circumstances, the claimant's use of his personal vehicle served his personal convenience and did not to confer a benefit on the employer. The respondents further contend that the employers' equipment would have been transported to the job site in the employers' vehicles except for the fact that the employees wanted to use their own vehicles for their convenience.
The evidence is subject to conflicting inferences. However, we are not persuaded the record compels the finding the employer had sufficient vehicles to transport all of its equipment to the job site. Rather, there is substantial evidence to support the ALJ's finding that Budget paid employees who used their own vehicles to transport other employees to the worksite, and that Budget knew the claimant was using his own vehicle to transport the employer's equipment to the job site. ( See Tr. pp. 54, 56).
Regardless of whether it was necessary for the claimant to transport the employer's equipment to the job site in his personal vehicle, there is substantial evidence that he transported the equipment to the job site for use on June 9, and then he carried it in his vehicle at the end of the workday. Even if the claimant was driving home and did not intend to stop at the storage shed at the time of the accident, the ALJ reasonably inferred the action of transporting the employers' equipment to his home so that he would have it to take on the next job site was contemplated by the employment contract and conferred a benefit to the employer. Cf. Whale Communications v. Osborn, 759 P.2d 848 (Colo.App. 1988). Thus, we reject the respondents' contention that the crucial issue was whether the claimant was driving to the storage shed or his home when the motor vehicle accident occurred. Furthermore, the ALJ's findings support her determination that the claimant proved a compensable injury. Madden v. Mountain West Fabricators, supra.
II.
The respondents also contend the ALJ erroneously awarded temporary disability benefits after February 1, 2000. We conclude the ALJ's findings of fact are insufficient to permit appellate review of the respondents' argument and, therefore, we remand the matter for additional findings. Section 8-43-301(8).
Once the claimant establishes an initial entitlement to temporary disability benefits, he is entitled to continuing temporary disability benefits until the occurrence of one of the events listed in § 8-42-105(3)(a)-(d), C.R.S. 2001. Burns v. Robinson Dairy, Inc., 911 P.2d 661 (Colo.App. 1995). Insofar as pertinent, § 8-42-105(3)(a) terminates temporary disability benefits when the claimant reaches maximum medical improvement (MMI). Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
The applicable law provides that the initial determination of MMI shall be made by an authorized treating physician and that opinion is binding on the parties unless the party who disputes the treating physician's opinion requests a Division-sponsored independent medical examination (DIME) under the provisions of § 8-42-107(8)(b)(II), C.R.S. 2001. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra. The question of whether an authorized treating physician has determined the claimant to be at MMI is a question of fact for resolution by the ALJ. Blue Mesa Forest v. Lopez, 928 P.2d 831 (Colo.App. 1996)
Here, the respondents submitted a clinic note dated February 1, 2000, in which, Dr. Lambden stated "At this point I told [the claimant] I don't believe there is anything medically that is going to improve his back." Dr. Lambden added "Follow-up in six weeks for a re- evaluation. At that time I believe he will be at maximum functional benefit."
The record also contains a letter dated April 21, 2000, from the respondents' attorney and addressed to Dr. Lambden. The letter stated:
"In your chart note of February 1, 2000, you indicate that you do not believe that there was anything medically that would improve the claimant's back. Please advise as to whether the claimant is at maximum medical improvement for his auto accident."
Below the text is a handwritten "Yes-MMI." with initials the respondents assert to be those of Dr. Lambden. Based upon the April 21 letter, the respondents contend Dr. Lambden placed the claimant at MMI on February 1, 2000.
The claimant does not dispute the respondents raised MMI as a defense to the claim for temporary disability benefits. Rather the claimant contends the respondents' evidence is "inconclusive and speculative" on the issue of MMI.
The ALJ made no findings of fact concerning MMI or the disputed medical reports. Under these circumstances, the ALJ's findings of fact are insufficient to determine whether the ALJ erred in awarding temporary disability benefits after February 1, 2000.
On remand the ALJ shall determine whether an authorized treating physician placed the claimant at MMI and if so the date of MMI. If the ALJ finds the treating physician placed the claimant at MMI temporary disability benefits terminate as of the date the claimant was placed at MMI subject to the DIME provisions of § 8-42-107(8)(b)(II).
IT IS THEREFORE ORDERED that the ALJ's order dated July 18, 2000, is set aside insofar as the ALJ awarded temporary disability benefits after February 1, 2000 and the matter is remanded to the ALJ for the entry of a new order on this issue. In all other respects the ALJ's order 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. 2001. 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 October 23, 2001 to the following parties:
Modesto Rodriguez, 3438 Marion St., Denver, CO 80205
Budget Sprinkler and Landscape, 3540 Jasper St., Aurora, CO 80011-1515
Centre Insurance Company, Bea Calvert, Western Guaranty Fund Services, 1720 S. Bellaire St., #408, Denver, CO 80222-4320
Vicky Roden, Superior National Insurance Group, P. O. Box 101630, Denver, CO 80250-1630
John J. Gallegos, Esq., 681 Grant St., Denver, CO 80203 (For Claimant)
Michael A. Perales, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Pendroy