Opinion
W.C. No. 3-108-329
December 4, 1995
FINAL ORDER
Mountain Medical Associates and its insurer, Continental Divide Insurance Company (Continental), seek review of an order of Administrative Law Judge Martinez (ALJ) which determined that the claimant sustained a compensable injury and ordered Continental to pay workers' compensation benefits. We affirm.
The claimant filed a claim for workers' compensation benefits in connection with disabling injuries she suffered in an automobile accident while driving to work on April 22, 1993. At the time of the accident, the claimant carried automobile insurance with State Farm Mutual Automobile Insurance Company (State Farm). Because Continental denied liability for the claimant's injuries, State Farm paid the claimant's medical bills and made payments for the claimant's lost wages under the no-fault provisions of the claimant's auto policy. State Farm subsequently applied for a hearing and sought an order requiring Continental to reimburse State Farm for all medical expenses and lost wage payments made in connection with the April 22 accident.
The ALJ found that the claimant was employed by the respondent-employer as an office helper at the time of the accident. The ALJ found that the claimant resided 42 miles from the employer's office and ordinarily traveled to and from work by bus. However, on April 21, 1993 the claimant agreed to drive her car to work on April 22, so that she could transport liquid nitrogen containers used by the employer to another company to be filled.
Under these circumstances, the ALJ determined that the claimant's injuries on April 22 arose out of the employment, and therefore, the ALJ concluded that Continental is liable for the claimant's injuries. The ALJ also granted State Farm's request for reimbursement.
I.
On review, Continental first contends that the ALJ erred in finding that the claimant's injuries arose out of her employment. We disagree.
An injury arises out of and in the course of employment when there is a sufficient "nexus" between the circumstances under which the claimant usually performs the employment and the activity which caused the injury, so that the activity may be considered an incident of the employment. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). As argued by Continental, the general rule is that injuries sustained while traveling to work fall within the "going to and coming from rule," and are not compensable. Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2 (1967); Perry v. Crawford Co., 677 P.2d 416 (Colo.App. 1983). However, exceptions exist where "special circumstances" demonstrate a nexus between the travel and the employment. Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo. App. 92, 554 P.2d 705 (1976). Such special circumstances have been found where the travel was at the implied or express direction of the employer and the employer receives some special benefit from the travel beyond the claimant's arrival to work. National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 1259 (Colo.App. 1992); Monolith Portland Cement v. Burak, 772 P.2d 688 (Colo.App. 1989).
Here, the ALJ found and the record amply supports his determination that the claimant was driving to work in her own vehicle on April 22 at the implied or express direction of the employer, to confer a special benefit on the employer. (Tr. pp. 9, 11, 13, 26). Therefore, we must uphold the ALJ's determination that the claimant's injuries arose out of the employment. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); L.E.L. Construction v. Goode, 849 P.2d 876 (Colo.App. 1992), rev'd on other grounds 867 P.2d 875 (Colo. 1994) (whether claimant has demonstrated sufficient nexus to employment is question of fact); Whale Communications v. Osborn, 759 P.2d 848 (Colo.App. 1988) (death arose out of employment where decedent was required to use her own car to contact customers and was killed in accident while driving home).
Continental's arguments to the contrary do not alter our conclusion. Specifically, the employer did control the manner in which the claimant traveled to work on the date of the injury. Further, the fact that the "special errand" to be performed by the claimant was not scheduled until later in the day is immaterial. The claimant had to drive her personal vehicle to work, in order for the vehicle to be available later in the day to transport the nitrogen containers. See Dynalectron Corp. v. Industrial Commission, 660 P.2d 915 (Colo.App. 1982) ; 1A Larson, Workmen's Compensation Laws § 16.10 (1994).
Moreover, the compensability of the claimant's injuries is not dependent on whether the employer paid the claimant for driving her car to work on April 22. Phillips Contracting, Inc. v. Hirst, ___ P.2d ___ (Colo.App. No. 94CA1233, August 10, 1995). In any case, the ALJ credited the testimony of employer's witness, Ms. Werner, that the claimant would have been reimbursed for her mileage expense on April 22, had the injuries not prevented the claimant from turning in a mileage reimbursement request. (Tr. pp. 26, 27).
II.
Next, Continental contends that the ALJ exceeded his authority in ordering Continental to reimburse State Farm. Essentially, Continental contends that State Farm has no "standing" in this workers' compensation claim to seek the reimbursement of no-fault insurance payments. Continental also contends that the State Farm must pursue its reimbursement claim in District Court. In support, Continental cites Benson v. Colorado Compensation Insurance Authority, 870 P.2d 624 (Colo.App. 1994). We reject these arguments.
Section 8-43-201 C.R.S. (1995 Cum. Supp.) affords the ALJ original jurisdiction to hear and decided "all matters arising under" the Workers' Compensation Act (Act). Section 8-43-215, C.R.S. (1995 Cum. Supp.) directs the ALJ to enter an order determining "by whom and to whom" benefits should be paid. This broad authority includes the right to resolve disputes concerning which workers' compensation insurer is liable for an injured worker's disability. Potomac Ins. Co. v. Industrial Commission, 744 P.2d 765 (Colo.App. 1987); cf. Subsequent Injury Fund v. Thompson, 793 P.2d 576 (Colo. 1990) (concerning SIF liability) ; Royal Globe Insurance Co. Collins, 723 P.2d 731 (Colo. 1986) (insurer "on the risk" at the time medical expenses are incurred must pay for medical expenses in connection with an occupational disease). The ALJ's authority also extends to disputes involving subrogation claims where the workers' compensation carrier seeks to reduce the claimant's workers' compensation benefits based on the claimant's settlement of a third-party claim. Tate v. Industrial Claim Appeals Office, supra; Jordan v. Fonken Stevens, ___ P.2d ___ (Colo.App. No. 94CA1824, May 18, 1995). Furthermore, once liability has been determined, the ALJ may order a workers' compensation insurer to reimburse a no-fault carrier for benefits which the no-fault carrier paid to the claimant. Oxford Chemicals Inc., v. Richardson, 782 P.2d 843 (Colo.App. 1986).
Because Continental denied liability for the claimant's injuries, State Farm's reimbursement claim was dependent on whether the claimant's injuries arose out of and in the course of her employment. Consequently, State Farm's request for reimbursement involved a matter "arising under" Act.
Moreover, Continental's reliance on Benson is misplaced. In Benson the injured worker claimed that she was not within the scope of her employment at the time she was injured, and sought uninsured motorists benefits independent of a claim for workers' compensation. Under these circumstances, the Benson court held that District Court was the proper forum to litigate the injured worker's claim for uninsured motorist benefits.
Unlike Benson, this claimant filed a claim for workers' compensation benefits and alleged that she was within the scope of her employment at the time of the injuries. Accordingly, we also reject Continental's assertion that the claimant was not a "party" and that the workers' compensation claim was not "initiated" by the claimant.
Next, we reject Continental's assertion that State Farm cannot be a "party" to this claim. In workers' compensation proceedings the term "party" is not restricted to employees, employers and their workers' compensation insurers. For example, under § 8-46-101 C.R.S. (1995 Cum. Supp.) the Subsequent Injury Fund may be an additional "party" where the claimant is permanently and totally disabled due to combined industrial disabilities. See Kehm v. Continental Grain, 756 P.2d 381 (Colo.App. 1987). Under § 8-43-501(5)(b), C.R.S. (1995 Cum. Supp.) a health care provider is a party for purposes of contesting an order for the retroactive denial of medical benefits. Donn v. Industrial Claim Appeals Office, 865 P.2d 873 (Colo.App. 1993), partially rev'd El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993). Further, in Adams v. Neoplan U.S.A. Corp., 881 P.2d 373 (Colo.App. 1993), the court held that an attorney was required to become a party to a workers' compensation case in order to appeal an order which assessed attorney fees against the attorney.
Similarly, parties other than the claimant may apply for a hearing. See Rules of Procedure, Part VIII(B), 7 Code Colo. Reg. 1101-3 at 22 (1995). For example, § 8-43-501(5)(b) states that a health care provider may request a de novo hearing concerning the retroactive denial of medical bills.
To have standing as a party, a litigant must have both an injury in fact and a cognizable legal right. Bradley v. Industrial Claim Appeals Office, 841 P.2d 1071 (Colo.App. 1992). The injury in fact requirement is satisfied if the party demonstrates that the activity complained of has caused, or has threatened to cause, injury to that party such that it can be said with fair assurance that there is an actual controversy for judicial resolution. Dunlap v. Colorado Springs Cablevision, 829 P.2d 1286 (Colo. 1992). Once an injury in fact is demonstrated, the party must show that the injury is to a legally protected interest emanating from a constitutional, statutory or judicially created rule of law that entitles the party to some form of judicial relief. Board of County Commissioners, v. Bowen/Edwards Associates, 830 P.2d 1045 (Colo. 1992).
Section 10-4-707(5), C.R.S. (1995 Cum. Supp.) provides that when an injured person is entitled to workers' compensation benefits, the injured person's no-fault benefits shall be reduced by the actual amount of the workers' compensation benefits received. In Tate v. Industrial Claims Appeals Office, 815 P.2d 19. (Colo. 1991), the Supreme Court concluded that § 10-4-707(5) reflects the General Assembly's intent to coordinate the Act with the statutory provisions concerning no-fault benefits to ensure that the workers' compensation carrier remains primarily liable for work-related injuries and that the claimant does not receive a double recovery.
By paying medical expenses which were determined to be the liability of Continental, State Farm demonstrated an injury in fact. Further, in accordance with Tate and § 10-4-707(5), State Farm has a statutory right to reduce its liability for no-fault benefits by the claimant's receipt of workers' compensation benefits. Under these circumstances, Continental has "standing" to seek reimbursement of no-fault benefits in this claim.
We have considered Continental's remaining arguments on this issue and they are not persuasive. Therefore, we conclude that the ALJ did not err in ordering Continental to reimburse State Farm for the payments made in connection with the claimant's work-related injuries.
III.
Lastly, Continental contends that the ALJ erred in awarding medical benefits and temporary disability benefits to the claimant. We conclude that this part of the ALJ's order is not currently subject to review.
Under § 8-43-301(2), C.R.S. (1993 Cum. Supp.), a party dissatisfied with an order "which requires any party to pay a penalty or benefits or denies a claimant a benefit or penalty," may file a petition to review. An order which determines liability for benefits, without determining the amount of benefits, does not award or deny benefits as contemplated by this statute, and thus, is not subject to appellate review. Oxford Chemicals, Inc. v. Richardson, supra; C F I Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982).
The ALJ's order expressly states that the only disputed issues were compensability, Continental's liability for the claimant's medical and disability benefits and whether Continental must reimburse State Farm for its payments to the claimant. The ALJ determined that Continental is liable for temporary disability and medical benefits, and that Continental must reimburse State Farm. However, the ALJ did not order Continental to pay any specific medical or temporary disability benefits beyond the reimbursement to State Farm. Consequently, the ALJ's order is not a final order concerning medical or temporary disability benefits which may be payable directly to the claimant.
IT IS THEREFORE ORDERED that the ALJ's order dated July 27, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed December 4, 1995 to the following parties:
Ursula Tabaska, 3643 Juniper Place, Apt. 10, Craig, CO 81625
Mark E. McCaulley, M.D. 100 Park Ave., Ste. 102, Steamboat Springs, CO 80487-5019
Continental Divide Ins. Co., c/o Cornhusker Casualty Co., 9290 W. Dodge Rd., Omaha, NE 68114
Anne Smith Myers, Esq., 3900 E. Mexico Ave., Ste. 1000, Denver, CO 80218
(For the Respondents)
Terry Lutts, Esq., 1660 Downing St., Denver, CO 80218
(For State Farm)
BY: _______________________