Opinion
W.C. No. 4-798-035.
September 30, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Henk (ALJ) dated April 15, 2010, that denied and dismissed the claim for compensation. We affirm.
The claimant worked sporadically for the employer at various projects in Wyoming and Colorado through December 2008. The claimant worked for the employer in Carbondale, Colorado until he was discharged on December 8, 2008 due to lack of work. At the time of his termination, the claimant was aware that the employer would be starting another job in Carthage, Texas at some point in time after the first of the year. The claimant returned home to Delta, Colorado. The claimant traveled to Texas in January 2009 and was eventually hired by the employer on February 4, 2009. The claimant worked for the employer in Texas until April 11, 2009 when he was laid off due to lack of work. The claimant remained in Texas for two days and then left to return to his home in Colorado on April 13, 2009. The claimant was injured in a one-car automobile accident. The claimant was a passenger in a car driven by a friend.
The ALJ concluded that the claimant had failed to sustain his burden of proving by a preponderance of the evidence that his injury of April 13, 2009 arose out of or in the course and scope of his employment for the employer. Therefore, the ALJ denied and dismissed the claim with prejudice.
The claimant contends that, as a matter of law, he was in "travel status" while at the employer's project in Carthage, Texas. The claimant further argues that his travel status had not terminated before the accident, which occurred on the claimant's way home to Delta, Colorado.
Ordinarily, an employee injured while traveling to or from work is not entitled to compensation. See Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2 (1967); Colorado Civil Air Patrol v. Hagans, 662 P.2d 194 (Colo. App. 1983). Off-premises injuries may be compensable, however, under special circumstances in which a causal connection exists between the employment and the injury. Perry v. Crawford Co., 677 P.2d 416 (Colo. App. 1983). Thus, if an employee's travel is at the express or implied request of the employer, or if the travel confers a benefit on the employer beyond the sole fact of the employee's arrival at work, the travel is within the scope of employment. Loffland Brothers v. Baca, 651 P.2d 431 (Colo. App. 1982); Varsity Contractors and Home Ins. Co. v. Baca 709 P.2d 55 (Colo. App. 1985).
In Madden v. Mountain W. Fabricators, 977 P.2d 861 (Colo. 1999), the supreme court addressed the going to and coming from work rule. The Madden court held that "the determination of whether a traveling employee's injury warrants an exception to the going to and from work rule is such a fact-specific analysis that it cannot be limited to a predetermined list of acceptable facts and circumstances." Madden, 977 P.2d at 864. Accordingly, the Madden court ruled that the proper approach was to consider a number of factors to determine whether special circumstances warrant recovery under the Act. According to the Madden court, those factors include, but are not limited to: (1) whether the travel occurred during working hours; (2) whether the travel occurred on or off the premises; (3) whether the travel was contemplated by the employment contract; and (4) whether the obligations or conditions of employment created a "zone of special danger" in which the injury arose.
Because the issue is factually specific, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S.; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo. App. 1998). Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo. App. 1985). Under this standard we must defer to the ALJ's resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.d. 411 (Colo. App. 1995).
Here, the ALJ made the following relevant findings. The claimant worked on several occasions for the employer, but each employment was a separate and distinct event. The claimant was not a continuous employee and in between jobs for the employer the claimant was free to seek other employment. During the time frame of his discharge from employment in Colorado on December 8, 2008 until his hire in Texas on February 4, 2009 the claimant was not an employee of the employer. The claimant's travel to Texas or away from Texas to seek employment at the end of his employment was not contemplated by the employer as part of the job. The travel was not compensated in any way by the employer.
On the four variables to be addressed in determining whether special circumstances warrant an exception to the general coming to and going from rule outlined by the court in Madden the ALJ made the following specific findings. Regarding the first variable of whether the travel occurred during working hours, the ALJ found that the travel not only occurred outside the working hours, but also two days after the claimant's employment had been terminated. On the second variable of whether the travel occurred on or off the employer's premises, the ALJ found that the employer's premises were in Texas, and the accident occurred in Colorado. The ALJ found that the fourth variable, whether the obligations or conditions of employment created a "zone of special danger," did not apply. The ALJ found that there were no special circumstances or hazards associated with the employment, the location of the employment, or the travel to and from the employment.
The ALJ made extensive findings on the third Madden variable of whether the travel was contemplated by the employment contract. The ALJ took note of the claimant's contention that because he was a resident of Colorado and went to work for the employer in Texas, travel must have been considered by and for the benefit of the employer. The ALJ further noted the claimant's contention that because the accident happened on the way from the job site to the claimant's permanent residence, he should be considered in travel status. The ALJ also noted that the employer paid a per diem for his employment in Texas. However, the ALJ concluded that the claimant did not qualify as a traveling employee. In reaching that conclusion the ALJ made the following findings of fact. The claimant had already been terminated from his employment in Texas when the accident happened. It was clear that travel was not contemplated by the employment contract. The employer did not hire the claimant in Colorado and ask him to travel to Texas. There was no continuous employment of the claimant by the employer between job opportunities. The employment contract was executed in Texas and terminated in Texas. There was no inducement provided by the employer to the claimant to travel to Texas for the job. The claimant was not paid mileage, meals, hotel costs, gasoline expenses, an hourly fee, or a per diem during any time that he traveled to Texas or from Texas for his job. The travel from Colorado to Texas was not assigned or directed by the employer. The claimant was not told to report to the job in Texas when he was terminated in Colorado. There was no ongoing employment relationship between December, 2008 and February, 2009 when the claimant was hired in Texas. There was no guarantee of reemployment. The claimant was free to accept employment elsewhere and to seek reemployment from the employer at any later date. The claimant provided no benefit to the employer by driving to Texas, as he did not have a vehicle, equipment or tools that were necessary for the performance of his job and he was not paid to bring the truck to the job site. The travel was not a substantial part of the service to the employer. The employer merely hired laborers and welding helpers when and if needed on the project. There were local and non-local individuals available for hire. Although the claimant had worked for the employer on previous occasions, there were no special benefits as a welder's helper to be rehired as opposed to other individuals available when needed. Skilled and unskilled individuals learn about these jobs, including location and start date, through publication and word of mouth. There were plenty of individuals available for each and every job, and the employer provided no special inducement to individuals to travel to take the position. The claimant was not an employee of the employer until such time as he arrived in Texas and was hired when a job became available. The employer did not maintain a traveling workforce that went from job to job. The employer had jobs in various locations for which it hired employees on the spot for that specific job.
In our view the findings made by the ALJ in considering the Madden variables support the ALJ's conclusion that the claimant had failed to sustain his burden of proving, by a preponderance of the evidence, that his injury of April 13, 2009, arose out of or in the course and scope of his employment for the employer. It does not appear that the claimant directly challenges any of the specific findings made by the ALJ listed above. In any event the testimony provided by the employer's superintendent and employment records submitted by the respondents, in our view, constitutes substantial evidence supporting the ALJ's conclusions.
Rather the claimant challenges certain conclusions reached by the ALJ. The claimant contends the ALJ erred in finding that there was no benefit to the employer to hire employees who have worked with the company before. The claimant argues that the employer paid a per diem to the claimant as a living expense when away from home. Therefore, the claimant, relying on Thompson v. Trans Colorado Gas / Gregory Cook Construction Co., W.C. No. 4-396-799 (February 10, 2000), aff'd Trans Colorado Gas, v. Jimmie Thompson No. 01CA0978 (Colo. App. August 15, 2002) (not selected for publication), concludes that the employment contract inherently required the claimant to travel away from home and he was in travel status. We are not persuaded that the reasoning in Thompson compels the conclusion that the claimant's accident was compensable.
In Thompson the claimant was an Oklahoma resident and while he was working for the employer on a job site in Wisconsin, was hired to work for the employer on a gas line project near Rifle, Colorado. The claimant was paid 30 cents per mile to travel from Wisconsin to Rifle, Colorado. The claimant temporarily resided in Colorado during the employment. The claimant was not paid a per diem, nor was the claimant provided room and board. After work on October 2, 1998, the claimant was injured in a motor vehicle accident. At the time of the accident the claimant was driving a vehicle and welding rig which he owned and rented to the employer. The employer paid a rental fee for use of the truck and rig during working time and the claimant was responsible for fuel, maintenance and insurance on the vehicle. The employer also paid the claimant a $25 maintenance fee per week. A welder's helper was a passenger in the truck and welding rig at the time of the accident. When the accident occurred the claimant was on his way to Rifle to buy some clothes for the helper. The Panel, relying on Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo. App. 1995), concluded the claimant was a "traveling employee" at the time of the injuries and remained in the course and scope of the employment as long as he did not engage in a personal deviation. Therefore, the Panel concluded that the claimant's injuries suffered in the motor vehicle accident were compensable.
In Thompson, unlike the case here, the claimant was hired directly by the employer to travel to Colorado for the project and was paid a portion of his travel costs. The claimant's travel occurred at the behest of the employer. In Thompson, the expectation of travel in the employment contract demonstrated the required nexus between the claimant's employment and the accident pursuant to the variable discussed in Madden v. Mountain West Fabricators. In contrast, here the claimant's employment ended in Colorado and almost two months later he was able to secure employment with the employer in Texas. In our view there is substantial evidence in the record supporting the ALJ's conclusion the claimant was no longer an employee of the employer at the time of the April 13, 2009 accident when he was traveling home.
Further, we agree with the ALJ that Sanchez, v. Accord Human Resources, W. C. Nos. 4-551-435, 4-552-982 (May 19, 2003) is applicable to this issue. In Sanchez the Panel stated:
Moreover, we perceive no merit to the claimant's contention that their travel conferred a special benefit on the employer because it relieved the employer of maintaining out of town crews. Following the claimant's analysis, every employee who drives from home to work confers a special benefit on the employer by relieving the employer of hiring employees who live within walking distance of the job site. This reasoning is inconsistent with the "going to and coming from" rule and, therefore, is unpersuasive.
In our view there is substantial evidence supporting the ALJ's determination that the claimant provided no benefit to the employer by driving to Texas. We are not persuaded to depart from the reasoning in Sanchez, v. Accord Human Resources. Further, in our view, there is substantial evidence in the record to support the ALJ's determination that the claimant's travel did not confer a benefit on the employer beyond the claimant's arrival to work.
We note that in the dissent a concern for the basis of Colorado's jurisdiction has been expressed. In our view the record does disclose the basis for jurisdiction. See Abraham v. C. H Trucking Company W.C. No. 3-750-093 (August 29, 1986), aff'd C. H Trucking Company v. Industrial Claim Appeals Office, No. 86CA1377 (Colo. App. March 5, 1987) (not selected for publication).
IT IS THEREFORE ORDERED that the ALJ's order dated April 15, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
Examiner Kriksciun dissents:
In my view the claimant was in travel status when he worked in Texas and therefore his injury while returning home to Colorado was compensable. In this regard, I rely upon the reasoning we have previously set forth in Burch v. Flint Energy Services, Inc., W.C. No. 4-643-153 (February 23, 2009). 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. The principles governing this application of the travel status doctrine were set forth by the supreme court in Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999), which is the case applied by the ALJ and the majority here.
However, we also held in Burch that the doctrine of travel status 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. An opinion more applicable than Madden to this broader version of the travel status doctrine is Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo. App. 1995). In Hirst the claimant was not traveling to or from work, but rather was an out-of-state employee hired by a Texas corporation to work in Colorado installing road signs and other apparatus. The claimant was injured in a motor vehicle accident that occurred on a Saturday when he and a co-worker were doing their laundry. The court held that the claimant's injuries were compensable on the ground that he was a traveling employee under continuous coverage. In my view the circumstances here are governed by Hirst rather than by Madden.
This is not a case in which the claimant was merely commuting to or from work, or performing an errand for the employer in a motor vehicle. Rather, it appears from the record, at least that this is a case, like Hirst, in which the claimant had temporarily relocated to a different state in order to perform work for the employer. In this regard, I presume, although it is not apparent from the record, that Colorado has jurisdiction over this claim. If the claimant was not hired in Colorado and did not perform substantial work in this state, then the basis for Colorado's jurisdiction is not clear. Assuming, however, that Colorado does have jurisdiction, I believe the claimant was in travel status at the time of his injury and I would not affirm the order.
DANIEL GUTIERREZ-SALAZAR, DELTA, CO, (Claimant)
JOMAX CONSTRUCTION COMPANY, Attn: BILL DURYEE, GREAT BEND, KS, (Employer)
VALLEY FORGE INSURANCE CO, Attn: DEBRA LINE, C/O: CNA, CHICAGO, IL, (Insurer)
THE LAW OFFICE OF MIGUEL MARTINEZ, Attn: MIGUEL MARTINEZ, ESQ., DENVER, CO, (For Claimant)
WHITE STEELE, PC, Attn: STEPHEN SPARR, ESQ., DENVER, CO, (For Respondents)