Opinion
W.C. No. 4-529-550.
September 12, 2005.
ORDER OF REMAND
The claimant seeks review of an order dated March 7, 2005 of Administrative Law Judge Harr (ALJ) that denied and dismissed her claim for workers' compensation benefits. The claimant contends the injury she sustained in a motor vehicle accident while on the way to a training session required for her job is compensable. We agree. Therefore, we reverse the ALJ's order and remand the matter to the ALJ for further proceedings.
The ALJ's pertinent findings of fact are as follows. On November 30, 2001, the claimant was hired as a prospective employee to work as a part-time bartender. The employer informed the claimant that she would need to obtain certification as a bartender in order to work in the employer's club. The employer scheduled two training sessions to permit the claimant to obtain the necessary certification. On December 19, 2001, the claimant arrived at the employer's club for the second session, and was informed that its location had been changed to a nearby warehouse owned by Budweiser. On the way to the session the claimant was injured in a motor vehicle accident. The claimant had not "begun working" by December 19th, nor was she being paid to attend the bartender certification classes.
Based upon his factual findings the ALJ concluded that the claimant was not in the course nor within the scope of her employment when she was injured on the way to the bartending certification session. Accordingly, he denied and dismissed the claim for compensation.
On appeal the claimant contends that it was undisputed she was an employee under a contract of hire and the ALJ's finding that she was a "prospective" employee is not supported by the record. The claimant also argues that the injury occurred in the course and within the scope of her employment because she was traveling to a training session at the direction of the employer. We agree with these arguments.
At the time of the injury a claimant must be performing service "arising out of and in the course of" the employment for the injury to be compensable. § 8-41-301(1)(b), C.R.S. 2005. An injury "arises out of" employment if it has its origins in the employee's work-related functions so that the injury may be considered part of the employee's service to the employer. It is not necessary that an activity be a strict obligation of employment, nor must it necessarily confer a benefit on the employer. Rather, an activity arises out of employment when it is sufficiently interrelated to the conditions and circumstances under which the employee usually performs her job functions, so that the activity may reasonably be characterized as an incident of employment. City of Boulder v. Streeb, 706 P.2d 786, 791 (Colo. 1985). An injury is in the "course of employment" if it occurs within the time and place limitations of the employment and during an activity having some connection to the employment. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991). As with the "arising out of" component, the course of employment test does not necessarily require that the employee be at work or on the clock so long as the employee's activity is a normal incident of the employment and is not a deviation. City of Boulder v. Streeb, supra.; Ventura v. Albertson's, Inc., 856 P.2d 35 (Colo.App. 1986).
Generally, if the employer mandates that a claimant engage in training as a job function, injuries sustained during the training are compensable. Keystone International, Inc. v. Gale, 33 Colo. 216, 518 P.2d 296 (1973); Koski v. Winter Park Resort, W.C. No. 2-236-953 (April 12, 1996). Off duty training which is mandated or encouraged by the employer may or may not be compensable depending on the circumstances. With regard to an off duty exercise program, it was held in Price v. Industrial Claim Appeals Office, 919 P.2d 207, 211 (Colo. 1996) that the relevant factors include whether the injury occurred during working hours, whether it occurred on the employer's premises, whether the employer initiated and controlled or directed the employee's exercise program, and whether the employer stood to benefit from the employee's exercise program.
Here, the claimant was not merely instructed, as in Price, that she needed to improve her conditioning in order to pass a fitness test, or needed to lose weight in order to come within certain departmental standards, and then left on her own to accomplish those fitness goals. Rather, in the present case, the claimant was injured while traveling at the direction of the employer to a mandatory training session, required before she could begin any work shift as a bartender for the employer. In our view coverage for this mandatory training session was not controlled by the principles set forth in Price; rather, the training session was a compulsory "job related function" similar to the employer-sponsored training covered in Keystone International, Inc. v. Gale, supra.
However, solely because the mandatory training session was an incident of the claimant's employment does not, of course, automatically resolve the question whether the claimant was covered by the Workers' Compensation Act while traveling to the training. An injury occurring while a claimant is traveling to or from work is generally not compensable. Berry's Coffee Shop v. Palomba, 161 Colo. 369, 423 P.2d 2 (1967). However, special circumstances establishing the necessary nexus between the travel and the employment may exist where, for example, the employment contract contemplates the claimant's travel. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). In Madden the court set forth a number of variables to be considered in determining whether an employee's travel was an exception to the general rule excluding coverage. Most significant of these variables for purposes of this case was "whether the travel was contemplated by the employment contract . . ." Madden, 977 P.2d at 864. In describing some of the many situations where travel was contemplated by an employment contract, the court noted that both it and the court of appeals "have awarded recovery when a particular journey was assigned or directed by the employer." Id. The court specifically identified travel that is assigned or directed by the employer as one of the examples of travel contemplated by the employment contract.
Here, in our view the ALJ's findings compel the conclusion that the claimant was in travel status while driving to the training session. The training was mandated by the employer and, when the claimant arrived at the employer's place of business she was directed to go to a new location off the premises. The time and place of the training sessions were set by the employer and there is no suggestion in the record that the claimant had available to her any alternative way of obtaining the necessary "certification" in order to begin work. Under these circumstances, the claimant's trip was "assigned or directed" by the employer, and the principles set forth in Madden mandate an award of benefits.
In evaluating the various factors, the ALJ in this claim placed great weight on the fact that the training activity was merely "preparatory" to the claimant actually beginning work with the employer and the claimant was hired as a "prospective" employee who had yet begun work for the employer. However, we do not believe these factors are sufficient to support the denial of the claim. Indeed, in many ways this case is strikingly similar to Clemenson v. Lovern's Painting, W.C. No. 4-503-762 (November 20, 2002), in which we reversed an award of benefits where the claimant was injured while traveling to obtain an identification badge in preparation for beginning his job. We reasoned in Clemenson that because the claimant had not yet begun work and because he had not been directed to obtain the identification badge at any particular time there was no sufficient nexus between that preparatory activity and his employment.
The court of appeals reversed our order in Clemenson, ruling that as a matter of law the claimant was in travel status during his trip to obtain the identification badge. See Clemenson v. Industrial Claim Appeals Office, No. 02CA2457 (Colo.App. Aug. 21, 2003) (not selected for publication). The court held that, although the employer did not direct the specific date or time of the travel, the claimant was required to travel to obtain the badge. Hence, the court ruled that the travel was an errand directed by the employer and, therefore, the claimant was in travel status. Moreover, the court rejected the argument that the claimant could not be in travel status because he had not yet begun his actual work duties.
The factors relied upon by the ALJ in dismissing this claim were rejected by the court of appeals in Clemenson. Indeed, here the arguments for compensability are more compelling because, unlike in Clemenson, the time, place, and nature of the training session were strictly controlled by the employer. Accordingly, we are persuaded by Clemonson that the ALJ misapplied the law in concluding the injury was not compensable.
However, we note that a motion to dismiss the claim as a sanction for the claimant's failure to comply with permitted discovery was pending before the ALJ at the time of the hearing, and that respondents' counsel requested a ruling on that motion, both at the commencement and the close of the hearing. Tr. p. 5, 83. The ALJ did not rule on the motion, presumably because his dismissal of the claim rendered it unnecessary. On remand the ALJ shall resolve the respondents' motion and based upon that disposition shall then enter a new order concerning the claimant's entitlement to specific workers' compensation benefits.
IT IS THEREFORE ORDERED that the ALJ's order dated March 7, 2005, is reversed and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Curt Kriksciun
Heather Shields, Broomfield, CO, Graham Central Station, Colorado Springs, CO, Legal Department, Pinnacol Assurance — Interagency Mail Steven R. Waldmann, Esq., Colorado Springs, CO, (For Claimant)
Charlotte A. Veaux, Esq., Colorado Springs, CO, (For Respondents).