IN RE ESLINGER
v.
KIT CARSON HOSPITAL, W.C. No

Industrial Claim Appeals OfficeJan 10, 2006
W.C. No. 4-638-306. (Colo. Ind. App. Jan. 10, 2006)

W.C. No. 4-638-306.

January 10, 2006.


FINAL ORDER

The respondents and the claimant seek review of an order dated August 12, 2005, of Administrative Law Judge Felter (ALJ), which determined that the claimant suffered a compensable injury when she slipped and fell in the employer's parking lot, but which denied temporary disability benefits (TTD). We affirm.

The ALJ's pertinent findings of fact are as follows. On January 5, 2005, the claimant "while still on the clock," slipped and fell in the employer's parking lot. Carrying a broom and her overnight bag, the claimant had left the hospital a few minutes before quitting time in order to sweep snow from the top of her car and to start her car. It was a cold, snowy January day. The activity of warming up her car in order to leave work on time was for her personal comfort and convenience.

Based on these findings, the ALJ determined that the claimant's activity of sweeping off the snow and warming up her car before her work shift ended was for her personal comfort and convenience and was, therefore, reasonably incidental to her employment. The ALJ found that the claimant was injured within the course and scope of her employment and that there was a sufficient nexus with the claimant's employment. The ALJ found that no persuasive evidence concerning temporary disability was presented and the claimant had failed to prove that she sustained any temporary disability through the hearing date.

I.

On review, the respondents assert that the claimant took herself outside of her employment to perform the personal activity of starting and cleaning off her car prior to the end of her shift. The respondents argue that the claimant deviated from her employment, and that personal deviation resulted in the injury. We disagree.

In Colorado, only those injuries "arising out of" and "in the course of employment," are compensable under the Workers' Compensation Act. Section 8-41-301(1), C.R.S. 2005; In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17 (Colo. 1988). The course of employment requirement is satisfied when the claimant shows that the injury occurred within the time and place limits of the employment. Popovich v. Irlando, 811 P.2d 379 (Colo. 1991). The "time" limits of the employment embrace a reasonable interval before and after official working hours when the employee is on the employer's property. 2 Larson, Workmen's Compensation Law § 21.60(a) (2005); Industrial Commission v. Hayden Coal Co., 113 Colo. 62, 155 P.2d 158 (1944) (an interval up to thirty five minutes has been allowed for the arrival and departure from work). Moreover, the "place" limits of the employment include parking lots controlled or operated by the employer, which are generally considered part of the employer's premises. State Compensation Insurance Fund v. Walter, 143 Colo. 549, 354 P.2d 591 (1960); Woodruff World Travel, Inc v. Industrial Commission, 38 Colo. App. 92, 554 P.2d 705 (1976). In the present case the claimant was injured on the "premises" of the employer, and it is undisputed that the accident occurred during official working hours.

The "arising out of" element is narrower than the "course" element and requires the claimant to prove the injury had its "origin in an employee's work-related functions and is sufficiently related thereto to be considered part of the employee's service to the employer." Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991). However, the employee's activity need not constitute a strict duty of employment or confer a specific benefit on the employer if it is incident to the conditions under which the employee usually performs the job. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). University of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423 (1953). It is not essential that the employee is performing a mandatory act at the time of the injury. See Employers' Mutual Ins. Co. v. Industrial Commission, 76 Colo. 84, 230 P. 394 (1924).

Actions such as eating, sleeping, resting, washing, toileting, seeking fresh air, getting a drink of water and keeping warm have been held to be incidental to employment under the "personal comfort" doctrine. As an example, injuries sustained on the employer's premises while eating lunch are generally compensable under that doctrine because the employee is at a place he might reasonably be, within the time limits of the employment, and engaged in an activity reasonably incident to the work. In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17, 22-23 (Colo. 1988); Industrial Commission v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952); (Colo. 1988) Ventura v. Albertsons' Inc., 856 P.2d 35 (Colo.App. 1992).

Underlying this doctrine is the principle that actions taken to satisfy the employees "personal comfort" are necessary to maintain the employee's health, and are indirectly conducive to the employer's purposes. See Ocean Accident Guaranty Corp. v. Pallaro, 66 Colo. 190, 180 P. 95 (1919). It is sufficient if the injury arises out of a risk which is reasonably incidental to the conditions and circumstances of the particular employment. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995). This includes discretionary activities on the part of the employee which are devoid of any duty component, and are unrelated to any specific benefit to the employer. City of Boulder v. Streeb, supra; L.E.L. Construction v. Goode, 849 P.2d 876 (Colo.App. 1992), rev'd on other grounds 867 P.2d 875 (Colo. 1994) (claimant sustained fatal compensable injuries while traveling between the job site and the employer's main office to pick up a paycheck).

Conversely, if an employee substantially deviates from the mandatory or incidental functions of the employment, such that she is acting for her sole benefit at the time of an injury, the injury is not compensable. Kater v. Industrial Commission, 728 P.2d 746 (Colo.App. 1986). However, Larson notes that ministerial actions taken for the employee's personal comfort are not a substantial deviation from employment unless the personal need being met is unreasonable, or the means chosen by the employee to satisfy the personal comfort is unreasonable. Larson supra, § 21.00. In Colorado, the employee is considered to remain in the course and scope of their employment while attending to a personal comfort unless the injury results from a "manifestly reckless or unreasonable hazard, amounting to intentional and willful misconduct, or by disregarding, or disobeying, some warning of danger at the place of the injury or prohibition relating to the thing being done either addressed to the workman or promulgated as a general rule of conduct while on the premises." Ocean Accident Guaranty Corp. v. Pallaro, 180 P. 95, 97; see also Employers' Mutual Ins. Co. v. Industrial Commission 76 Colo. 84, 230 P. 394 (1924).

The questions of whether an injury arose out of and in the course of employment are generally issues of fact for determination by the ALJ. Consequently, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005; L.E.L. Construction v. Goode, 849 P.2d 876, 882-883 (Colo.App. 1992), rev'd. on other issues, 867 P.2d 875 (Colo. 1994). This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, defer to the ALJ's resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. § 8-43-301(8), C.R.S. 2005, Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003). Further, an ALJ need not address every piece of evidence, and evidence and inferences inconsistent with the order were presumably rejected. We may also consider findings necessarily implied by the order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).

The respondents cite Callahan v. Nekoosa Papers, Inc., W.C. No. 3-866-766 (May 8, 1989) as dispositive of the claimant's entitlement to benefits. In Callahan the ALJ found that the claimant was injured during an authorized break when he was in the employer's parking lot and working on his personal vehicle using his own tools. It was determined that this activity was for the claimant's "sole benefit, and which was not incidental to his employment." Callahan applied Kater v. Industrial Commission, 728 P.2d 746, supra, which held that if the acts of an employee at the time of the injury are for the employee's sole benefit, then the injury does not arise out of and in the course of employment.

We reject the respondents' argument that Callahan precludes a finding by the ALJ of a compensable injury where, as here, the claimant is injured warming up her car before her work shift ended, for her personal comfort and convenience. In Callahan the claimant's actions were for the sole benefit of the claimant and did not involve the personal comfort doctrine as in the present case. The ALJ was not required by the facts in this case to conclude the claimant acted in a fashion that constituted a deviation from the employment. The ALJ found under the personal comfort doctrine, the claimant who, within the time and space limits of her employment, engaged in acts which ministered to her personal comfort did come within the coverage of the act. The ALJ was not persuaded by the evidence which, arguably, might have supported a contrary inference. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, supra.

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). We must uphold the ALJ's determinations if supported by substantial evidence in the record. § 8-43-301(8), C.R.S. 2005. Under this standard, we are bound by the ALJ's plausible inferences from the record. See Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998).

Here, the ALJ's order reflects his recognition and proper application of the "arising out of" test. (Findings of Fact, Conclusions of Law at 3 4 ¶ b, c, d). Moreover, the ALJ expressly found there was a sufficient nexus to her work so as to bring the activity of sweeping the snow off and warming up her car within the course and scope of her employment.

The record is sufficient to support the ALJ's finding of a sufficient "nexus" between the claimant's activity and employment to prove that the injury arose out of the employment. Moreover, the injury occurred on the employer's premises. In addition, the ALJ found the injury arose out of the employment because warming up her car in the parking lot, before her shift ended, had a sufficient relationship to the circumstances under which the claimant performed the work that the personal comfort doctrine applies. The evidence supports the ALJ's finding of a sufficient nexus between the employment and the accident, and we may not interfere with that determination. Industrial Commission v. Golden Cycle Corp., 126 Colo. 68, 246 P.2d 902 (1952) ; L.E.L. Construction Co. v. Goode, supra.

II.

The claimant also filed a petition to review; however, it does not set forth in any detail the particular errors and objections of the petitioner, as required in § 8-43-301(2), C.R.S. 2005. Moreover, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is severely limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).

Section 8-43-301(2), C.R.S. 2005, provides that a "petition to review shall be in writing and shall set forth in detail the particular errors and objections of the petitioner." The requirement for a detailed petition to review is not jurisdictional. However, the court of appeals has held that if a petition to review does not comply with the statute by setting out particular errors, we need not consider the petition unless we elect to do so. Oxford Chemicals, Inc. v. Richardson, 782 P.2d 843 (Colo.App. 1989).

Here, the claimant's petition to review is no more specific than the petition in the Oxford Chemicals case, and does not comply with the specificity requirement. In this case, we elect not to consider the petition to review. Because the claimant has not identified any precise legal or factual issues on appeal, we are left to speculate concerning the precise reasons for the petition to review. Any issue we raise sua sponte could result in abandonment of our role as neutral adjudicators, and could deny the respondents their due process right to make argument in opposition to such issues. Under these circumstances, we conclude it is appropriate to dismiss the petition to review for lack of specificity. Urbino v. Kiewit Western Company, W.C. No. 4-313-483, (July 10, 2002); Cf. Fuller v. Budweiser, Pueblo Distributing, W.C. No. 4-429-730 (December 18, 2001).

IT IS THEREFORE ORDERED that the ALJ's order dated August 12, 2005, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Curt Kriksciun

______________________________ Tom Schrant

Marie Eslinger, Bethune, CO, Robin Konecne, Kit Carson County Memorial Hospital, Burlington, CO, Colorado Hospital Association Trust, Englewood, CO, Kevin C. Smith, Esq., Denver, CO, (For Claimant).

Christopher Condit, Esq., Denver, CO, (For Respondents).