Summary
explaining that “the responsibility for custody of [an] employer's supplies and equipment and for transporting these items ... provide a substantial service for employer from which the employer clearly derive benefit”
Summary of this case from Colvin v. GiguereOpinion
Rehearing Denied March 5, 1974.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., Denver, for respondent Industrial Commission of Colorado.
Francis L. Bury, Robert S. Ferguson, James A. May, Denver, for petitioners.
Carl W. Gellenthien, Pueblo, for respondents, William V. Jordan and Joseph A. Salazar.
SMITH, Judge.
Petitioners seek review of awards of the Industrial Commission granting compensation to claimants for injuries resulting from an automobile accident which occurred while claimants were returning home from janitorial work performed away from employer's place of business. Because both claims arose out of the same accident and both appeals raise the same legal issue, the cases have been consolidated.
On October 8, 1972, both claimants sustained injuries when the tire of the automobile in which they were riding suffered a 'blow-out'. This incident occurred at the Department of Transportation High Speed test facility located 35 Miles east of Pueblo, Colorado, where they had been performing janitorial services on behalf of their employer. Claimants were returning to their homes in Pueblo in a car owned and being driven by claimant Jordan. The record discloses that claimants generally used their own cars when required to work at job sites away from employer's place of business in Pueblo. On such occasions they carried janitorial equipment and supplies owned by the employer with them, thus permitting them to drive directly to the job site from their homes. Although claimants had received no reimbursement for transportation costs, their fellow employees were so compensated, and claimants had been promised similar compensation.
On the basis of these facts, the Industrial Commission concluded that claimants' injuries occurred in the course of and arising out of their employment. Petitioners argue that because claimants received injuries while returning to their homes in a car owned by one of the claimants, the case falls within the general rule which denies compensation for injuries received by employees while traveling to and from work. We disagree.
Although compensation generally is not recoverable by an employee who is injured on his way to or from work, See Martin K. Eby Construction Co. v. Industrial Commission, 151 Colo. 320, 377 P.2d 745; Comstock v. Bivens, 78 Colo. 107, 239 P. 869, each case must be analyzed on the basis of its own facts and circumstances. In all cases, the focus must be on whether there is a causal relationship between the employment and the injury, See Industrial Commission v. London & Lancashire Indemnity Co., 135 Colo. 372, 311 P.2d 705, and whether the accident occurred while the employee was acting under the direction or on behalf of the employer. See O. P. Skaggs Co. v. Nixon, 101 Colo. 203, 72 P.2d 1102.
In the instant case, claimants did not travel to and from a place furnished by employer for the performance of their work. Instead, they traveled directly to and from a job site nearly 35 miles outside of Pueblo. Had claimants been required to go to the employer's place of business to pick up equipment and supplies before going to the job site and to return the same before going home, any injuries incurred by them between the employer's place of business and the job site unquestionably would have been compensable, even though injuries which they might have suffered while traveling between their homes and employer's place of business would not. See Tatum-Reese Development Co. v. Industrial Commission, 30 Colo.App. 149, 490 P.2d 94. Having been given the responsibility for custody of employer's supplies and equipment and for transporting these items directly from their homes to the job site, claimants provided a substantial service for employer from which the employer clearly derived benefit. The fact that fellow employees received compensation for travel to and from outside job sites and the fact that claimants were promised such compensation merely reinforces the conclusion that the trip to and from the Department of Transportation site was performed as an incident of, and in the course of, the employment.
There being sufficient evidence in the record to support the commission's finding that the injuries arose out of and in the course of claimants' employment, the awards are affirmed.
Orders affirmed.
SILVERSTEIN, C.J., and COYTE, J., concur.