Opinion
W.C. No. 4-520-338
February 21, 2003
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which determined the claimant suffered a compensable injury and awarded medical benefits. We affirm.
The pertinent findings are essentially undisputed. The claimant was employed by Tandem Staffing (Tandem), which is a temporary services agency. The claimant was assigned work at various locations. The claimant, who had no automobile or driver's license, would take public transportation to Tandem's place of business each morning to see if work was available that day. If work was assigned, the claimant would be transported to the work site in one of Tandem's vans, the vehicle of another employee, or by public transportation. If the claimant rode in a van or the vehicle of another employee the employer charged the claimant $1.00 each way.
On October 24, 2001, the claimant arrived at Tandem's office and was assigned work for Get-a-Grip in Englewood. The claimant rode to the work site in the vehicle of a coworker. The claimant sustained injuries in an automobile accident while traveling from Tandem's offices to Get-a-Grip.
In a previous order, the ALJ concluded the claimant was engaged in a "ridesharing" arrangement within the meaning of § 8-40-201(8), C.R.S. 2002, at the time of the accident. Thus, the ALJ held the claimant's injuries were not compensable. The claimant appealed the prior order.
On review we concluded as a matter of law that, the claimant was not engaged in ridesharing at the time of the injury. Consequently, we set aside the ALJ's order and remanded the matter to the ALJ for further findings concerning compensability of the injuries.
On remand the ALJ issued an order dated October 18, 2002, which determined the claimant's injuries arose out of and in the course of employment. Expressly citing Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999), the ALJ found the claimant was not paid for the time she was traveling to Get-a-Grip, the accident did not occur on the employer's premises and the employment did not create a zone of special danger. However, the ALJ found that travel was contemplated by the employment contract, that the claimant's travel to Get-a-Grip was the express request of Tandem and the travel conferred a benefit on Tandem beyond the claimant's arrival to work. (Conclusion of Law 5).
The October order did not award or deny any specific benefit or penalty. However, based on the parties' joint motion for the entry of a "supplemental order," the ALJ awarded specific medical benefits on November 6, 2002. The respondents timely appealed the November 6, 2002 order.
I.
On review of the November order the respondents contend we erroneously found the claimant was not engaged in "ridesharing" at the time of the injury. In support, the respondents contend that Tandem did not control the claimant's method of travel to work and did not pay the claimant a wage for her travel to work. The respondents' arguments do not persuade us to depart from our prior conclusions.
For an injury to be compensable, it must arise out of and in the course of the claimant's employment. Section 8-41-301(2)(b) and (c), C.R.S. 2002. 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, an exception applies when the employee's travel is at the express or implied request of the employer, or when the travel confers a benefit on the employer beyond the sole fact of the employee's arrival at work. Thus, injuries sustained during travel between remote job sites and the employer's premises have been found compensable. See Benson v. Colorado Compensation Insurance Authority, 870 P.2d 624 (Colo.App. 1994); Tatum-Reese Development Corp. v. Industrial Commission, 30 Colo. App. 149, 490 P.2d 94 (1971). The essence of this exception is that when the employer "requires the claimant to travel beyond a fixed location established for the performance of his duties, the risks of such travel become risks of the employment." Staff Administrators Inc., v. Industrial Claim Appeals Office, 958 P.2d 509 (Colo.App. 1997). Moreover, Professor Larson concluded that where a temporary services employer requires the employee to travel to a fixed location, then dispatches the employee to another work site to perform services, the travel between the temporary service employer's premises and the remote site is an "integral part of the employment." 1 Larson's Workers' Compensation Law, § 14.03 (2001).
Section 8-40-201(8) provides that employment "shall not include participation in a ridesharing arrangement as defined in section 10-4-707.5(2), C.R.S." Insofar as pertinent, § 10-4-707.5(2) defines ridesharing as the "transportation of passengers traveling together primarily to and from such passengers' places of business or work." The statute also provides that ridesharing includes arrangements "commonly known as carpools and vanpools."
The purpose of the ridesharing statute is to modify the exception to the "going to and coming from rule" where the employer provides the means of transportation or pays the employee's cost of traveling to and from work. Samora v. Tempforce, W.C. No. 4-128-217 (July 15, 1993). In Samora, the claimant was employed by a temporary service agency in Colorado and assigned work at a construction project in Arizona. The claimant was injured in an automobile accident while traveling to Arizona in a vehicle owned by the employer. An ALJ determined the claimant was in travel status and not "ridesharing" at the time of the injuries because the employment required the claimant to travel away from home and beyond the employer's place of business.
The respondents contend Samora v. Tempforce, supra, is factually distinguishable from the circumstances presented here because the Samora claimant was paid $15 per diem for the trip to Arizona, was required to travel out of state and was required to be away from home overnight. We disagree.
As we stated in Samora v. Tempforce, supra, § 8-40-201(8) was enacted to eliminate an employer's potential liability for injuries sustained by employees who commute to work in a carpool which is financed in part or arranged by the employer. Smith v. Pinner 891 F.2d 784, 787 (10th Cir. 1989) [civil damage action for injuries which are the subject of Loffland Brothers Co. v. Industrial Commission, 714 P.2d 509 (Colo.App. 1985)]. As a result, the statute furthers the "socially desirable goal of commuter-ridesharing by encouraging employer facilitation and support of employee car-pooling arrangements" through its assurance that employers' liability exposure will not thereby increase. Smith v. Pinner, n. 3. However, employees in travel status are engaged in travel which is different in kind and duration from that of employees commuting to and from work. In particular, the risks associated with remote travel usually last longer and require the employee to encounter unfamiliar roads, and other hazards not associated with commuting. Consequently, in Samora, we held that a "ridesharing arrangement" contemplates a "regular commute from the employee's home to a relatively fixed work site, on a regular basis." In contrast, the ridesharing statute does not apply where the claimant is required to travel away from the employer's place of business at the employer's direction. Samora v. Tempforce, supra.
This distinction is illustrated by Loffland Brothers Co. v. Industrial Commission, supra, where the claimant was injured while returning home from a remote drilling site. It was undisputed the claimant was "ridesharing" at the time of the injury. Further, the court concluded the claimant was not in travel status at the time of the accident because he was not required to travel away from the "employment site on the employer's business." Rather, the claimant was "simply returning home from work," at the time of the accident.
We agree with the respondents that Loffland stands for the proposition that the "ridesharing" statute applies to travel from home to work. However, the Loffland court concluded that "ridesharing" is distinguishable from circumstances where the claimant is required to "travel away from the employment site on the employer's business."
Here, the ALJ found with record support that the claimant was not traveling from her home to the employer's premises at the time of the accident. Rather, the claimant had already arrived at the employer's place of business as required to get her daily assignment. Tandem then required the claimant to travel to a remote site to fulfill the employer's contract to provide the services of temporary employees. Thus, this is not a case where the claimant had a regular commute to a fixed location and was merely "commuting" from home to the employer's premises at the time of the accident. Accordingly, we adhere to our conclusion that the claimant's travel from the employer's place of business to Get-a-Grip did not constitute the type of employer facilitated "commuter-ridesharing" contemplated by § 8-40-201(8).
The respondent's further arguments on this issue have been considered and do not alter our conclusions.
II.
Alternatively, the respondents contend the ALJ erroneously determined the claimant's injuries arose out of and in the course of employment under the principles established in Madden v. Mountain West Fabricators, supra. Again, we disagree.
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 Madden court noted that travel is contemplated by the employment contract if it is "at the express or implied request of the employer." In such circumstances, the travel confers a benefit beyond the employee's mere arrival at work. 977 P.2d at 861. Furthermore, in cases where the travel is at the express or implied request of the employer, there is no requirement that the claimant be paid for the travel. See Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995); Benson v. Colorado Compensation Insurance Authority, supra.
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. The court concluded travel was not contemplated by the employment contract because Madden was free to carpool or use any other form 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, the claimant was required to find her own transportation to Tandem's business offices each day to get her work assignment. However, unlike the facts in Madden, Tandem was in the business of providing temporary labor to other companies. Consequently, the claimant was required to travel to a location beyond the employer's office on a daily basis. (Finding of Fact 5). Under these circumstances, the ALJ reasonably inferred that the travel required by Tandem was different than the travel required in Madden. Further, the claimant's daily willingness to travel to a work location beyond the Tandem's business offices for a fee supports the ALJ's determination that the travel conferred a benefit beyond the claimant's mere arrival to work. Under these circumstances, we perceive no error in the ALJ's determination that this matter is distinguishable from Madden.
The respondents contend that our conclusions lead to "nonsensical results" where travel will be considered to be contemplated in the employment of large segments of the work force including construction workers, and home health care providers. Contrary to the respondents' contention the court has already held that travel is contemplated by the employment of a home health care provider who is required to travel to the homes of clients. In Benson v. Colorado Compensation Insurance Authority, supra, the claimant was injured while traveling between home health care assignments for the employer. Although the Benson claimant was not paid for travel time or paid a mileage reimbursement, the court held that the travel conferred a benefit to the employer beyond the claimant's arrival to work. Therefore, the injuries were compensable.
Finally, we reject the respondents' contention that the ALJ's prior order clearly determined that travel was not contemplated by the employment contract and therefore, we erred in remanding the matter for additional findings of fact on this issue. Our Order of Remand stated that we were unable to ascertain the factual basis for the ALJ's conclusion that the claimant's travel between Tandem's business premises and the location to which the claimant was directed on October 24 was not contemplated by the employment contract because the ALJ also found that the claimant was "assigned" to the remote site after arriving at Tandem's place of business. (Finding of Fact 2). Because the ALJ's findings were inherently inconsistent we concluded they were insufficient to permit appellate review. We adhere to our prior conclusions.
IT IS THEREFORE ORDERED that the ALJ's order dated November 6, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________
Kathy E. Dean
___________________________________
Robert M. Socolofsky
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 ______February 21, 2003 to the following parties:
Berlinda D. Schutter, P.O. Box 44431, Denver, CO 80201-4431
Outsource International/Tandem Staffing, 325 E. Costilla St., Colorado Springs, CO 80903-2105
Zurich American Insurance Company, c/o Cheryl A. Zimmerman, ITT Specialty Risk Services, Inc., P.O. Box 221700, Denver, CO 80222
Mark A. Simon, Esq., 1873 S. Bellaire St., #605, Denver, CO 80222 (For Claimant)
Lawrence D. Blackman, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents)
By: ________A. Hurtado______________