Opinion
W.C. No. 4-432-260
September 21, 2000
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Hopf (ALJ) which awarded the claimant temporary total disability and medical benefits. Essentially, the respondent contends the ALJ erred in finding the claimant's slip and fall in a parking lot arose out of and in the course of employment. We affirm.
On August 10, 1999, the claimant was employed as a sales associate at the employer's store located in the Cherry Creek Shopping Center. The employer required all employees to park their vehicles on level E5 of a parking lot owned and maintained by the shopping center. Employees were required to enter and leave the store through a door opening onto level E5.
On the evening of August 10 the claimant "clocked out" and ate dinner in a break room located on the employer's premises near the designated entry and exit door. Shortly before the end of the dinner hour the claimant approached the entry door, and the ALJ found the claimant "may have intended to move her car which was parked on level E5. . . closer to the entrance door." However, as the claimant approached the door she observed her supervisor was leaving for the day and walking across the parking lot. The ALJ found the claimant "exited the store through the mandatory door" and "hailed" the supervisor with the intention of speaking about the claimant's "work hours for the next day." (Findings of Fact 11-14). As the claimant walked across the E5 parking lot she "slipped on some standing water in a depressed area of the pavement and fell."
Under these circumstances, the ALJ concluded the claimant proved her injury arose out of and in the course of employment as required by § 8-41-301(1)(b), C.R.S. 2000. The ALJ determined the circumstances established a sufficient "nexus" between the claimant's employment and the injury. In so doing, the ALJ rejected the respondent's argument that the injury was not compensable because members of the general public could park on level E5 and, therefore, the injury was the product of a shared or common risk.
I.
On review, the respondent's major contention is that the award of benefits is not supported by applicable law because the injury did not arise out of the claimant's employment, nor did it occur within the course of the employment. The respondent argues the injury did not arise out of employment because it resulted from the claimant's volitional decision to move her vehicle closer to the entrance, and not as a result of any employment-related duties. The respondent also contends the injury did not occur in the course of employment because the risk encountered by the claimant was commonly shared by the public at large. We reject these arguments.
The requirements of § 8-41-301(1)(b) that the injury arise out of and in the course of employment represent different elements. The "arising out of" test is one of causation and requires that the injury have its origin in an employee's work-related functions and be sufficiently related thereto so as to be considered part of the employee's service to the employer. In contrast, the "in the course of" test refers to the time, place and circumstances of the injury. The test ensures that the injury occurs within the time and place limits of the employment during an activity with some connection to job-related functions. See Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991).
In order for an injury to arise out of employment, there is no requirement that the activity be a strict duty or obligation of employment, nor is there any requirement that the employer enjoy a specific benefit from the activity. Instead, an activity arises out of employment if it is sufficiently "interrelated to the conditions and circumstances under which the employee generally performs the job functions that the activity may reasonably be characterized as an incident of employment." Price v. Industrial Claim appeal Office, 919 P.2d 207, 210 (Colo. 1996). Discussions of employment-related duties, including work schedules, between supervisors and subordinates are sufficiently related to the performance of work that such discussions arise out of employment. Triad Painting Co. v. Blair, supra; Ventura v. Albertson's, Inc., 856 P.2d 35 (Colo.App. 1992). Ultimately, the determination of whether there is a sufficient "nexus" or causal relationship between the claimant's employment and the injury is one of fact which the ALJ must determine based on the totality of the circumstances. In Re Question Submitted by the United States Court of Appeals, 759 P.2d 17 (Colo. 1988); Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996).
Because the issue is factual in nature, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. This standard of review requires us to defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible the inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995). Further, the ALJ need not render findings concerning every piece of evidence so long as the basis of the order is clear from the findings entered. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
We reject the respondent's assertion that the ALJ's findings are insufficient or contradictory with regard to the reason the claimant left the store and entered the parking lot. The ALJ explicitly found that the claimant approached the door, and at that time "may have" intended to move her car. However, it is clear from Findings of Fact 12 through 14 and Conclusion of Law 5 that the ALJ found the claimant left the building with the intent to speak to her supervisor concerning the next day's work schedule. Further, this finding is consistent with the claimant's testimony and that of the supervisor concerning the claimant's statements immediately after the accident. Although some contradictory evidence was presented, the ALJ resolved the conflict against the respondent and we may not substitute our judgment for her's concerning the credibility of the witnesses or the inferences to be drawn from the record.
It follows the record contains sufficient evidence to support the ALJ's finding of a causal nexus between the claimant's actions at the time of the injury and her employment. Specifically, the claimant left the building for the purpose of speaking with her supervisor concerning an issue directly related to the performance of the claimant's duties. Further, the claimant sought to have this conversation in a parking lot over which the employer exercised dominion through an expressed employment policy. Indeed, it may reasonably be said the claimant's employment contract established that the employer was entitled to regulate the claimant's use of the parking lot. See Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999) (in determining whether off premises injury arose out of and in the course of employment ALJ was entitled to consider whether travel was contemplated by the employment contract and whether the conditions of employment created a "zone of special danger"). The fact that the respondent did not own or control the parking lot does not, as a matter of law, mandate a different result. Friedman's Market, Inc. v. Welham, 653 P.2d 760 (Colo.App. 1982).
The respondent next contends the injury did not occur in the course of the claimant's employment because it occurred off the employer's premises, while the claimant was off the clock, and at a place where the risk was shared by the general public. We disagree with these arguments.
As stated by Professor Larson, parking lots maintained or owned by the employer are generally considered to be part of the employer's premises, and this rule has been "applied when the lot, although not owned by the employer, was exclusively used, or used with the owner's special permission, or just used, by the employees of this employer." Further, once a parking lot has achieved the status of "a portion of the employer's premises, compensation coverage attaches to any injury that would be compensable on the main premises." Larson's Workers' Compensation Law, § 13.04 [2] [a] [b]. In State Compensation Insurance Fund v. Walter, 143 Colo. 549, 354 P.2d 591 (Colo. 1960), our Supreme Court adopted these principles in upholding an award of compensation to a claimant who was injured while crossing a public street between the employer's parking lot and the employer's shop. The Walter court expressly noted that the "main line of American decisions is to the effect that accidents occurring in or en route to parking lots maintained" by the employer for the employees' benefit arise out of employment. In Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo. App. 92, 554 P.2d 705 (Colo.App. 1976), the court upheld an award to a claimant injured in a parking lot maintained by the employer's landlord. The Woodruff court stated that Walter should not be construed as requiring that the employee be injured "near or on a parking lot owned, maintained, or controlled by the employer." Rather, the Woodruff court considered it sufficient that the parking lot was provided for use by Woodruff's employees, Woodruff was aware its employees used the lot, and the lot constituted "an obvious fringe benefit to claimant."
Here, although the respondent did not own or maintain the lot, the ALJ plausibly inferred the respondent had authority to allow its employees to use the lot. Moreover, the respondent exercised control over the lot by establishing a policy regulating its use by employees. Thus, as the ALJ concluded, this case falls squarely within authority holding that injuries occurring in parking lots maintained or made available by the employer are compensable, especially where the employer exercises authority over the employees' parking choices. Friedman's Market, Inc., v. Welham, supra. Therefore, the claimant's injury is compensable.
The respondent's contention that the ALJ erred in failing to apply the "special hazard" doctrine discussed in Perry v. Crawford Co. 677 P.2d 416 (Colo.App. 1983), and Friedman's Market, Inc. v. Welham, supra, is incorrect. The Perry case concerned an off premises injury which occurred when the claimant was struck on a public street while returning from lunch. The court noted the existence of a "special hazard exception" to the "going to and coming from" rule exists where an off premises injury occurs on the only route, or at least the normal route, which employees must traverse to reach the employer's premises, and the employee is forced to encounter special hazards not generally shared by the public. See also Martin K. Eby Construction Co. v. Industrial Commission, 151 Colo. 320, 377 P.2d 745 (1963). Thus, Perry is inapposite on its facts, and did not discuss the doctrine which treats parking lots maintained, provided, or regulated by the employer as part of the employer's premises. Similarly, the Welham case discussed the special hazard doctrine as an alternative theory for granting compensation in a case where the employer required the claimant to park in a public lot which was separated from the employer's premises by railroad tracks. The claimant was killed while crossing the tracks on his way to work. Indeed, the court found a sufficient relationship between the claimant's employment and the circumstances of the injury based on the "employer's parking policy."
The fact that the injury occurred during the claimant's dinner break while she was "off the clock" does not change the result. On premises lunchtime injuries generally fall within the course of employment. Perry v. Crawford Co., supra. Here, the evidence establishes that the claimant's parking lot injury occurred, for legal purposes, on the respondent's "premises," and the claimant was in the parking lot for reasons related to the respondent's business. Ventura v. Albertson's, Inc., supra (it is not the character of the premises, but rather the nexus between the employment conditions and the injury that is determinative.)
II.
The respondent also asserts the "concrete surface" of the parking lot constituted a "ubiquitous condition" which the claimant could have encountered anywhere. Thus, relying on Gates Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo.App. 1985), the respondent asserts the claimant's injury is not compensable. We disagree.
The special hazard doctrine applies where the claimant's fall is precipitated by a preexisting nonindustrial circumstance, such as a syncopal episode or epilepsy. In such cases, the existence of a special hazard, which elevates the probability of injury or the extent of the injury incurred, serves to establish the required causal relationship between the employment and the injury. See National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 1259 (Colo.App. 1992); Ramsdell v. Horn, 781 P.2d 150 (Colo.App. 1989). There is no need to show a special hazard if the fall is precipitated by the circumstances or conditions of the employment. H H Warehouse v. Vicory, 805 P.2d 1167 (Colo.App. 1990).
Here, the claimant's fall was not initiated by some preexisting condition. Rather, the claimant fell because she stepped in water which collected in a depression in the pavement. Consequently, the precipitating cause of the claimant's injury was the conditions of her employment, and there was no need to prove a "special hazard" to demonstrate compensability. In light of this conclusion, we need not resolve the claimant's assertion that the respondent waived this issue.
Insofar as the respondent makes other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ's order dated to January 25, 2000, 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. 2000. 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 September 21, 2000 to the following parties:
Charlotte Seltzer, 8000 E. Girard Ave., #414, Denver, CO 80231
Foley's Department Store, Central Regional Claims Office, 614 Locust St., St. Louis, MO 63101-1701
Gregory W. Heron, Esq., 1199 Bannock St., Denver, CO 80204 (For Claimant)
Julie A. Halaby, Esq., 1700 Broadway, #1910, Denver, CO 80290 (For Respondent)
BY: A. Pendroy