Summary
In Burch we stated that "travel status" has a narrow sense in which it carves out an exception to the general rule that a claimant who is injured while going to or coming from work does not qualify for recovery because that travel is not considered to arise out of and in the course of employment.
Summary of this case from In re Gutierrez-Salazar v. Jomax Const., W.C. NoOpinion
W.C. No. 4-643-153.
February 23, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ) dated August 28, 2008, that ordered the respondents to pay medical benefits for the claimant's compensable condition. We affirm.
This matter has a somewhat complicated procedural history, which it is necessary to recite in some detail in order to fully understand the matter presently before us. The claim was previously before us, when the claimant appealed an order of ALJ Martinez dated April 3, 2006, denying and dismissing the claimant's claim for compensation. ALJ Martinez conducted a hearing on the issues of the compensability of the claim, and the claimant's entitlement to medical benefits and temporary disability benefits. Following the hearing the ALJ entered factual findings as follows: The claimant, who resided in Louisiana, was working on a construction crew in Texas for A L Underground, a Kansas company. In July 2004 the respondent employer contacted the claimant by telephone and inquired whether he was interested in working for the employer. The claimant's employment with A L Underground ended on July 20, 2004, and on July 26, 2004, the claimant completed the employment application process at the respondent employer's office in Farmington, New Mexico. The claimant was not paid for his travel from Texas to New Mexico, nor was he reimbursed for any expenses in connection with that travel. The respondent employer hired the claimant to work on a job near Durango, Colorado. The employer paid him hourly wages in addition to a subsistence allowance and "pick up pay," which was on account of his use of his personal truck on the job. The subsistence pay was provided by the employer to attract job candidates from out of state. After accepting the job, the claimant elected to live at the Durango RV Park. On August 21, 2004 the claimant began to experience flu-like symptoms that were determined to be caused by the West Nile virus, which is mainly transmitted by the Culex Tarsalis mosquito and which has an incubation period in humans of three to 14 days. ALJ Martinez weighed the expert and lay testimony and found that it was not probable that the claimant was bitten by an infected mosquito while the claimant was on the job during working hours. Rather, the ALJ found that it was probable that he was bitten on the grounds of the RV camp.
Based upon his factual findings ALJ Martinez concluded that the claimant failed to carry his burden of showing a compensable injury. ALJ Martinez concluded that the claimant was not in travel status and also that he failed to show that the injury occurred while he was working on the construction project. Accordingly, ALJ Martinez denied and dismissed the claim.
In an Order of Remand dated September 14, 2006, we reversed ALJ Martinez's order and concluded that the factual findings compelled the conclusion that the claim was compensable. Accordingly, we remanded the matter for a determination of the benefits and compensation owed the claimant.
The respondents appealed the order of September 14, 2006 to the Colorado Court of Appeals, which in an unpublished decision dated March 27, 2008, dismissed the appeal on the ground that our order was not final and reviewable.
On remand ALJ Harr issued the order presently under review, dated August 28, 2008. A hearing was held on the issue of the claimant's entitlement to medical benefits, following which the ALJ entered findings of fact that for purposes of this order may be summarized as follows. The claimant is a resident of Louisiana who traveled to Colorado to work for the employer on a temporary basis. He contracted West Nile Virus on August 23, 2004 and sought treatment at Mercy Medical Center in Durango on August 23rd and 25th. The treatment received at that time was reasonable and necessary to cure and relieve the effects of the virus.
Based upon his factual findings, the ALJ ordered the respondents to pay the medical bills incurred by the claimant in receiving treatment. The respondents appealed the ALJ's order and argue that the panel erred in reversing ALJ Martinez's order. Specifically, the respondents argue that the panel improperly substituted its judgment for that of ALJ Martinez regarding the application of the facts to the relevant law. The respondents argue that ALJ Martinez's factual findings were supported by substantial evidence in the record and that he correctly applied the law in concluding that the claimant was not in travel status. Therefore, the respondents contend that the panel erred in reversing the order.
We note that the claimant argues in his brief in opposition to the respondents' petition to review that the respondents should not be afforded an opportunity to argue again that the panel erred in reversing ALJ Martinez's order. The claimant reasons that the respondents had an opportunity in the previous appeal to present its argument fully and that the matter is not "ripe" for reconsideration by the panel. The claimant concedes that the respondents may renew their arguments to the court of appeals, but he asserts that the appeal here is merely of ALJ Harr's order awarding medical benefits and the respondents should not be permitted to try to persuade the panel to reconsider its previous order.
It is unnecessary for us to resolve the claimant's argument, because we have reviewed the respondents' brief in support of its petition to review, considered the arguments, and we are unpersuaded that we erred in reversing ALJ Martinez's order. In concluding that the claimant was in travel status at the time of his injury, we noted in our previous order the following:
In its narrow sense travel status is an exception to the general rule that a claimant who is injured while going to or coming from work does not qualify for recovery because such travel is not considered to be performance of services arising out of and in the course of employment. See e.g., Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). Under Madden the determination of whether a traveling employee's injury warrants the exception from the "going and coming rule" depends upon consideration of a number of variables such as whether the travel occurred during working hours, whether it occurred on the employer's premises, whether the travel was contemplated by the employment contract, and whether the employment created a "zone of special danger" out of which the injury arose. Madden, 977 P.2d at 864. See also Staff Administrator, Inc. v. Reynolds, 977 P.2d 866 (Colo. 1999).
We observed that ALJ Martinez relied chiefly on Madden, weighing the factors articulated in that opinion and concluding that because the claimant was not on an overnight business trip, he was therefore not in travel status. However, in our view ALJ Martinez's conception of the travel status doctrine was overly narrow.
In this regard we stated the following regarding the broader application of the travel status doctrine:
The doctrine of travel status also applies in a broader sense to employees who travel away from home in order to work in a temporary position or on a temporary project. This form of the doctrine is typified by Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995). In Hirst the claimant was not merely traveling to or from work and, therefore, travel status as an exception to the going and coming rule was not relevant. Rather, the claimant was an out-of-state employee on a Colorado road crew, employed by a Texas corporation which had contracted with Colorado to install road signs, guardrails, and fencing. The claimant was hired in Texas and transported by the employer to Colorado to work on the project. He and the other crew members were housed in a hotel or in other temporary quarters. On a Saturday a co-worker and the claimant obtained permission to drive a company truck to a nearby town in order to launder their clothes and to purchase clothing for the upcoming winter. They completed the personal errands and stopped at a bar prior to returning to their residences. After leaving the bar they were involved in a motor vehicle accident, which severely injured the claimant. The court held that the claimant's injuries were compensable on the ground that he was a traveling employee under continuous coverage. In concluding that the claimant was in travel status continuously while living in Colorado, the court expressly rejected the argument that because the job was scheduled to last for three or four months the claimant had relocated to Colorado rather than only temporarily traveled there. In this regard the court noted that there was no evidence that the claimant intended "permanently to relocate to Colorado."
In our view, Hirst sets forth the controlling legal principles in this case. We therefore held that the ALJ's factual findings compelled the conclusion under Hirst that the claimant was in travel status while working on the employer's project in Colorado. As previously noted, we are unpersuaded that we erred in our previous order and we adhere to the analysis set forth there. In this regard, we note that although we have set forth substantial portions of that order here, it is unnecessary for us to reiterate it in totality. It is that order that will be under review should the respondents elect to appeal further, and we merely observe here that we are unpersuaded to reconsider that order in whole or in part. IT IS THEREFORE ORDERED that the ALJ's order dated August 28, 2008, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
RANDALL BURCH, OAK GROVE, LA, (Claimant).
FLINT ENERGY SERVICES INC, Attn: ROBERT BAKER, TULSA, OK, (Employer).
LIBERTY MUTUAL INSURANCE COMPANY, Attn: MICHAEL KETTER, IRVING, TX, (Insurer).
IRWIN BOESEN, PC, Attn: LANE N COHEN, ESQ., DENVER, CO, (For Claimant).
LAW OFFICES OF RICHARD P MYERS, Attn: JONATHAN S. ROBBINS, ESQ., DENVER, CO, (For Respondents).