Opinion
W.C. No. 4-713-707.
January 16, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Broniak (ALJ) dated August 14, 2007 that denied and dismissed the claim for workers' compensation benefits. We affirm.
The ALJ's pertinent findings of fact are as follows. The employer's business involves contracting with clients who need legal staff. The claimant signed an employment agreement with the employer which provided that she was in a pool and available for work assignments. The employer assigned the claimant to work at a law firm and advised her that the firm would not provide a parking space for her and she would need to park on a nearby side street. The employer did not reimburse its employees for travel expenses nor did the employer provide transportation for its employees to the clients' worksites. The responsibility for travel to and from worksites rested solely with the employees. The employees travel directly from their homes to the clients' worksites rather than first traveling to the employer's office before going to the worksites. The employer did not require that its employees report back to its office before going home. The claimant drove her personal vehicle from her home and parked it on a public side street near the law firm's offices. Due to snowy weather, the claimant was to leave early. The claimant walked to her vehicle to go home and as she approached the trunk, she slipped and fell on the public street causing her to feel pain in her right leg. The claimant ultimately drove herself home and reported the fall to her employer. A representative of the employer testified that temporary legal secretary assignments generally do not require travel or errand duties and that if such duties are required, clients notify the employer in advance. The law firm had not asked that the claimant be available for travel or errand duties. The employer did not dictate the claimant's method of travel to the law firm and the claimant could travel from her home to the law firm by any method she chose.
The ALJ, citing Madden v. Mountain W. Fabricators, 977 P.2d 861 (Colo. 1999), considered the factors outlined by the Supreme Court of Colorado to determine whether an employee traveling to or from work is acting within the course of employment. The ALJ determined that the claimant had not established by a preponderance of the evidence that she was in the course and scope of her employment when she slipped and fell or that her injury had a sufficient causal relationship to her employment. The ALJ denied and dismissed the claimant's claim for workers' compensation benefits.
I.
On appeal, the claimant first contends that the undisputed facts compel the conclusion that the claimant's travel on the day of the injury was contemplated by her employment arrangement with the employer.
To qualify for recovery under the Workers' Compensation Act of Colorado, a claimant must be performing services arising out of and in the course of her employment at the time of her injury. See § 8-41-301(1)(b) C.R.S. 2007. For an injury to occur "in the course of" employment, the claimant must demonstrate that the injury occurred within the time and place limits of her employment and during an activity that had some connection with her work-related functions. See Triad Painting Co. v. Blair, 812 P.2d 638, 641 (Colo. 1991). The "arise out of" requirement is narrower than the "in the course of" requirement. See id. For an injury to arise out of employment, the claimant must show a causal connection between the employment and injury such that the injury has its origins in the employee's work-related functions and is sufficiently related to those functions to be considered part of the employment contract. See id. at 641-42; Industrial Comm'n v. Enyeart, 81 Colo. 521, 524-25, 256 P. 314, 315 (1927) (denying recovery to claimant who was injured when his steering gave out while he was driving across a bridge on his employer's property on his way home from work). The claimant must prove these statutory requirements by a preponderance of the evidence. See City of Boulder v. Streeb, 706 P.2d 786, 789 (Colo. 1985).
In general, 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 Industrial Comm'n v. Lavach, 165 Colo. 433, 437-38, 439 P.2d 359, 361 (1968); Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 373, 423 P.2d 2, 4-5 (1967); Varsity Contractors v. Baca, 709 P.2d 55 (Colo.App. 1985). This principle is known as the "going to and from work" rule. See Berry's Coffee Shop, Inc., 161 Colo. at 373, 423 P.2d at 4-5. However, the courts of Colorado have recognized many exceptions to this rule to account for varying and unusual circumstances that create a causal connection between the employment and an injury that occurred while the employee was going to and from work. Madden v. Mountain W. Fabricators, 977 P.2d 861 (Colo. 1999).
In Madden v. Mountain W. Fabricators, the court explained that the proper approach is to consider a number of variables when determining whether special circumstances warrant recovery under the Act. These variables include but are not limited to: (1) whether the travel occurred during working hours, (2) whether the travel occurred on or off the employer's 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" out of which the injury arose.
As we read the claimant's brief, she has conceded the first two variables. The travel did not occur during working hours, and that the travel occurred off the employer's premises. On the first remaining variable, the claimant contends her travel on the day of the injury was contemplated by her employment arrangement with the employer because it was at the express request of the employer. The claimant argues that a representative of the employer had the night before instructed her where to report and where to park. The claimant further argues travel to the client's places of business is an inherent part of the temporary services provided by the claimant.
Here the ALJ performed the kind of fact-specific analysis mandated by the court in Madden and there is substantial evidence supporting the ALJ's order. The ALJ made the following findings. The essence of the claimant's employment was to perform legal secretary duties, which did not include traveling. Travel was not a substantial part of the service performed by the claimant for the employer. The claimant was required to find her own transportation to and from the clients' worksites, which meant she could have used any means of transportation. Simply because the nature of the employer's business required its employees to commute from their homes to different worksites did not imply that the employment agreement contemplated travel. The employer did not dictate to the claimant that she should drive her car or that she must park in a certain location. The representative of the employer merely offered the claimant an alternative for parking by suggesting that she park on a nearby side street.
As in Madden, apart from the sole fact of the claimant's arrival at work the claimant's travel was not singled out for special treatment. We agree with the ALJ that her travel to and from work on the day in question was not contemplated by the employment contract. We are not bound by legal conclusions drawn from undisputed facts. See Schrieber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993). However, we decline to conclude that a temporary employee's off premise injuries occurring on a public street are as a matter of law compensable. The claimant was on the public road as a member of the public and not in the exercise of any right conferred to her by the contract of employment as might be the case is she was on the premises of the employer or the law firm.
The claimant contends that Benson v. Colorado Compensation Insurance Authority, 870 P.2d 624 (Colo.App. 1994) is essentially indistinguishable from the present case. We disagree. In Benson the Court of Appeals held that where an employer required the claimant to travel between the homes of several patients an injury sustained during the travel is compensable. In Benson the court first noted that generally, injuries sustained while traveling to or from work are not considered to have occurred within the scope of employment. However, the court explained than an exception applies when the employee's travel is at the express or implied request of the employer or when the travel confers a benefit on the employer beyond the sole fact of the employee's arrival at work. In Benson the plaintiff was traveling between job assignments for her employer, and, because of the nature of her employment, this travel conferred a benefit on the employer beyond the mere fact of her arrival at work. Therefore, after considering the totality of the circumstances, the court concurred with the trial court's determination that the undisputed facts revealed a sufficient nexus between plaintiff's injury and her employment to determine as a matter of law that the accident occurred within the scope of her employment.
Here, the claimant's assignment at the law firm was a long-term temporary position, which was expected to last two to three weeks and could have turned into a permanent position. Tr. at 16, 27. However, if the temporary assignment turned into a permanent assignment, then the employer client paid an additional fee. Tr. at 39. The claimant's secretarial duties did not require her to travel between different work sites during the day as in Benson. Travel was not a substantial part of the service performed by the claimant for the law firm or the employer. The ALJ determined that the claimant's travel to the client's worksite conferred no benefit upon the employer other than her arrival at work, which is supported by the ALJ's finding that the essence of the claimant's employment was to perform legal secretary duties, but did not include traveling. Under these circumstances, we are not convinced that the undisputed evidence compels the conclusion that the claimant's travel on the day of the injury was contemplated by her employment arrangement with the employer.
II.
The claimant next contends that the issue in this case is of first impression, and we should adopt the approach contained in A. Larson, Workers' Compensation Law. In our opinion, the courts of Colorado have addressed on a number of occasions the issue of the general "going to and from work" rule and various exceptions to it. The Colorado Supreme Court in Madden provided a broad framework to account for varying and unusual circumstances that create as an exception to the general rule a causal connection between the employment and an injury that occurred while the employee was going to and from work. In our view, the published decisions of the appellate courts of Colorado supply sufficient guidance to resolve the present case.
In addition, we do not read the current version of A. Larson, Workers' Compensation Law as proposing that a worker employed by a temporary agency who suffers an injury while traveling to work at the client's worksite has by law suffered a compensable injury. Currently the section in Larson's on this issue contains citations of cases with differing opinions on the issue. In particular, some jurisdictions have found that although the temporary nature of temporary worker's job means that they report to different location when they are assigned to a different employer, there is no basis for carving out an exception to the going and coming rule. 1 A. Larson, Workers' Compensation Law, Digest § 14.03D at D14-11 to -12 (2006). We reject the claimant's proposal and instead rely on the published decisions of the appellate courts in Colorado on this issue.
The claimant cites the panel's case of Harries v. Stivers Temporary Personnel, W.C. 4-181-311(November 21, 1994) for the proposition that the panel in 1994 cited with approval a certain section of Larson's treatise on Workers' Compensation. Claimant's reliance upon Harries as authority for compensability is misplaced. Harries involved an exception to the general "going to and from employment" rule where injuries can be compensable under the "special errand" doctrine. In Harris, the clamant was given permission to take a day off so she could testify in court. The claimant had arranged to meet a temporary replacement in the morning to let her into the bank before she went to testify. The claimant was injured driving to the bank. The panel remanded because the record contained some evidence that had not been considered by the ALJ and might permit the inference that the claimant was engaged in a "special errand" at the time of her injury. In our opinion, the ALJ did not error in failing to find that the claimant was engaged in a "special errand" in the present case.
The more recent panel order of Schutter v. Outsource International/Tandem, W. C. No. 4-520-338 (November 6, 2002) decided after the Supreme Court's decision in Madden, dealt with an employee of a temporary service agency. The employee took public transportation to the temporary staffing agency's office. The claimant would then be transported to a worksite in one of the agency's vans or a vehicle operated by a coworker. While being transported to the work site the claimant was involved in an accident. In that case, the panel concluded that where a temporary services employer requires the employee to travel to a fixed location and then dispatches the employee to another work site to perform services, the travel between the temporary service employer's premises and the remote site is an integral part of the employment. The panel also distinguished the type of case, as the one here, where the claimant had a regular commute to a fixed location.
In our view Schutter is consistent with Staff Administrators Inc. v. Reynolds, 977 P.2d 866 (Colo. 1999) where the claimant was injured in an accident in his own vehicle and was awarded compensation. The claimant missed an opportunity to rendezvous with other workers who would meet at a service station to carpool and obtain fuel customarily paid for by owner of construction company for work at construction site located a substantial distance from claimant's home and the employer's place of business. We perceive no error in the ALJ's order, which is consistent with Madden and Staff Administrative, Inc. v. Reynolds.
III.
The claimant, citing the fourth variable listed in Madden, alternatively contends that the employer's instructions as to where to park created a special hazard that made her injury compensable. The claimant argues that the claimant was specifically instructed not to park in the employee parking lot adjacent to the law firm's building.
In Madden, the court explained that the fourth variable, the zone of special danger, refers to injuries that occur off an employer's premises, but so close to the zone, environment, or hazards of such premises as to warrant recovery under the Act. For example, the court cited Martin K. Eby Constr. Co. v. Industrial Comm'n, 151 Colo. 320, 323-24, 377 P.2d 745, 747 (1963), in which the court affirmed an award to an employee who was injured in an automobile accident sixteen miles inside a missile site, while driving to a construction job. The court also cited State Compensation Ins. Fund v. Walter, 143 Colo. 549, 555-56, 354 P.2d 591, 594 (1960), in which the court allowed recovery where an employee was injured crossing a public street bisecting the premises of his employer while on his way to a parking area where a space had been assigned to him on the employer's premises.
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. 2007; 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, his 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 determined that the employer's statement to the claimant that the law firm would not have parking available and its suggestion that she might need to park her car on the public street did not constitute a sufficient interjection regarding the employer's preference regarding parking or traveling. The ALJ's corresponding findings are supported by the record and reasonable inferences therefrom. As the ALJ noted, there was evidence that the form of transportation used was entirely up to each individual employee, and the claimant offered no persuasive evidence of how her travel to the client's worksite conferred a benefit upon the employer other than her arrival at work.
Moreover, the circumstances support the ALJ's determination that, although the employer addressed travel with the claimant by specifically directing her where not to park her car, the employer did not dictate to the claimant that she should drive her car or that she must park in a certain location. We do not view the facts of this case as requiring a determination that the employer sufficiently interjected its preference into the claimant's personal decision about where to park so as to make the hazards of the parking lot the hazards of the employment. See State Compensation Insurance Fund v. Walter, 143 Colo. 549, 354 P.2d 591 (Colo. 1960); Friedman's Market, Inc. v. Welham 653 P.2d 760 (Colo.App. 1982).
In Friedman's Market, Inc. v. Welham, the surviving spouse of the worker was entitled to workers' compensation benefits where the worker was killed while crossing railroad tracks from a parking lot used by employees because the employer would not permit them to park on the premises or adjacent streets. Almost all of the employees, including the owner, used the subject parking lot. Furthermore, while there were other lots available, the subject lot was clearly the most convenient for employer's employees, and particularly for the decedent. The hazard of the railroad tracks was not shared equally by the general public because the public did not need to park across the railroad tracks as a result of the employer's parking policy. Under the circumstances, the court found that the special hazard exception was applicable to the going to and coming from rule. In Welham the court noted that an employee's unfettered choice of parking might render parking a purely personal act. However, in Welham the employer purposely intervened in the parking process and received a benefit from its employees' compliance, either voluntary or enforced, with the employer's parking policy. Accordingly, the decedent's act of parking in the subject parking lot and proceeding across the railroad tracks to employer's premises was not regarded as purely personal and wholly unrelated to his employment. Here, the ALJ found otherwise determining that the employer's statement that the claimant might need to park her car on the public street did not constitute a sufficient interjection regarding the employer's preference regarding parking or traveling.
The claimant also argues that if she had been allowed to park in the law firm lot and if she had fallen in that parking lot then the fall would be compensable even if the fall had happened when she was going to or coming from work. We are restricted to the facts actually presented in the instant case. Further, Colorado courts have focused on the mutual benefit of employer-provided parking to both the employee and the employer, even though the benefit to the employer may be slight. Sieck v. Trueblood 29 Colo. App. 432, 485 P.2d 134 at 135. Accord, Berry's Coffee Shop, Inc. v. Palomba, supra; Walsh v. Industrial Commission, 34 Colo.App. 371, 527 P.2d 1180 (Colo.App. 1974). Here, the claimant was not provided with the benefit of a parking lot. If anything this indicates that an exception should not be made to the general rule that injuries incurred going to and from work are not within the ambit of the Act.
In Perry v. Crawford Co. 677 P.2d 416 (Colo.App. 1983), the court noted the existence of a "special hazard exception" to the "going to and coming from" rule where an off-premises injury occurs on the normal route that employees must take to reach the employer's premises and the employee is forced to encounter special hazards not generally shared by the public. See also Martin K. Eby Construction Co. v. Industrial Commission, 151 Colo. 320, 377 P.2d 745 (1963) (discussing hazards of the route). The courts of Colorado have for some time used the analysis of what special risks to which an employee, as opposed to the general public, is exposed. See, e.g., Industrial Commission v. Anderson, 69 Colo. 147, 169 P. 135(Colo. 1917) (slip and fall on ice en route to work not compensable). In our view the ALJ did not err in failing to conclude that the claimant's decision to park on a public street did not result in "special circumstances" creating a causal connection between her employment and her injuries.
IT IS THEREFORE ORDERED that the ALJ's order dated August 14, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ John D. Baird ___________________________________ Thomas Schrant
PENNY GREGORY, FT LUPTON, CO (Claimant)
TRAVELERS INDEMNITY COMPANY, Attn: SHARI SUMMERLIN, DENVER, CO (Insurer)
THE ELLIOTT LAW OFFICES, Attn: MARK D. ELLIOTT, ESQ., ARVADA, CO (For Claimant)
RAY LEGO ASSOCIATES, Attn: MAUREEN A HARRINGTON, ESQ., GREENWOOD VILLAGE, CO (For Respondents)