Opinion
W.C. No. 4-396-799
February 10, 2000
ORDER
The claimant seeks review of an order of Administrative Law Judge Schulman (ALJ) which determined the claimant failed to prove he suffered a compensable injury and, therefore, denied and dismissed the claim for workers' compensation benefits. We reverse and remand for further proceedings.
The claimant, an Oklahoma resident, is a welder. The claimant testified that while he was working for Gregory Cook Construction Company (employer) on a job site in Wisconsin, he was hired to work for the employer on a gas line project near Rifle, Colorado.
The parties stipulated to the following facts. 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 paid an hourly rate of pay. However, 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. Trenity King (King), a welder's helper, was a passenger in the vehicle at the time of the accident. At the time of the accident, the claimant was on his way to Rife to buy some clothes for King.
The claimant argued that the automobile accident occurred under "special circumstances" which establish a causal connection between the injuries and the employment under an exception to the "going to and coming from" rule of compensability. The ALJ rejected the claimant's argument. The ALJ determined the claimant failed to prove any exception to the "going to and coming from" rule. The ALJ also found that the claimant failed to prove that he was in "travel status" at the time of the injury. In support, the ALJ found that the claimant was "dispatched for the job through his union rather than being hired directly" by the employer. (Finding of Fact 5). The ALJ also found that the employer did not require the claimant to travel from one of its job sites to the Colorado job site. Instead, the ALJ found the claimant was specifically hired for the Colorado project. Further, the ALJ determined that even though the claimant was paid a travel allowance to come to Colorado from the city of hire, he was not transported by the employer to the new location or given use of the employer's vehicle in Colorado. She also found that the employer did not pay the claimant's gasoline expenses, arrange a carpool for the claimant or provide board or lodging. Under these circumstances, the ALJ determined that once the claimant arrived in Colorado, he was not a "traveling employee" and was "merely an employee of the company who was working in Colorado at the time of the accident." (Discussion and Conclusions of Law). Consequently, the ALJ determined the claimant failed to prove that his injuries arose out of and in the course of his employment.
On review the claimant argues, inter alia, that the ALJ erred in finding he was not a "traveling employee" at the time of the injuries. In support, the claimant contends that there is no significant factual difference between this case and Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995), where the court upheld an award of workers' compensation benefits to an out of state resident, who was hired in Texas to work on a Colorado road crew, and was injured while driving back to the job site after completing a personal errand. We agree.
To prove a compensable injury the claimant is required to establish that the injury arose "out of and in the course of" employment. 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 the employment during an activity which is sufficiently related to the conditions and circumstances under which the employee usually performs his or her job functions to be considered part of the service to the employer. Price v. Industrial Claim Appeals Office, 919 P.d. 207 (Colo. 1996). Generally, injuries sustained by employees going to and from work are not compensable because such travel is not considered to occur in the course of the claimant's employment. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999) ; Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 212 (Colo. 1967). However, such injuries are compensable if "special circumstances" exist which demonstrate a nexus between the injuries and the employment. Berry's Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2 (1967). Special circumstances have been found where the employment contract contemplates the claimant's travel, and the employer singles out the employee's travel for special treatment as an inducement to employment by either providing transportation or paying the cost of the employee's travel. Madden v. Mountain West Fabricators, 977 P.2d 861, 865 (Colo. 1999) ; Staff Administrators Inc., v. Reynolds, 977 P.2d 866 (Colo. 1999) (travel contemplated by employment where employer paid for carpool to transport employees to temporary job site).
An employee whose work requires him to travel away from home is held to be within the course of employment continuously during the trip, except when the employee makes a distinct departure on a personal errand. Silver Engineering Workers, Inc. v. Simmons, 180 Colo. 309, 505 P.2d 966 (1973); Phillips Contracting, Inc. v. Hirst, supra; Tatum-Reese Development Corp., v. Industrial Commission, 30 Colo. App. 149, 490 P.2d 94 (1971). The essence of the travel status exception to the "going to and coming from" rule is that when the employer requires the claimant to travel beyond a fixed location established for the performance of his duties, the risks of such travel become risks of the employment. Staff Administrators Inc., v. Industrial Claim Appeals Office, 958 P.2d at 511; Martin K. Eby Construction Co. v. Industrial Commission, 151 Colo. 320, 377 P.2d 745 (1963).
The facts in Phillips Contracting, Inc. v. Hirst, supra, involved a Texas resident who was temporarily working in Colorado. While in Colorado Hirst established a temporary residence near the job site. Because most of the employees did not have access to personal vehicles, the employer allowed certain employees to use company vehicles. On the day of the accident Hirst rode with a co-worker in a company vehicle to do their laundry and purchase winter clothing. The claimant was injured during the drive back to his lodging.
The claimant in Hirst was hired at the employer's place of business in Texas and required to travel to the job site in Colorado in order to do the employer's work. Under these circumstances, the court held that Hirst qualified as a traveling employee. Further, the court concluded that Hirst was in travel status at the time of the injuries. Consequently, the court upheld our conclusion that the claimant's injuries arose out of in and in the course of his employment.
Generally, the question of whether the claimant is a "traveling employee" is one of fact for resolution by the ALJ. City and County of Denver School District No. 1 v. Industrial Commission, 196 Colo. 131, 581 P.2d 1162 (1978); Wild West Radio, Inc. v. Industrial Claim Appeals Office, 905 P.2d 6 (Colo.App. 1995) ; Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991). However, the ALJ's factual determination is not binding where the undisputed facts establish the claimant was in travel status as a matter of law. See Kelly v. Mile Hi Single Ply, Inc., 873 P.2d 13 (Colo.App. 1993).
The claimant testified that he was working at the employer's job site in Wisconsin when he was hired by the employer's welder foreman to work at the employer's Colorado job site. (Tr. p. 45). It is undisputed that the claimant is not a Colorado resident and therefore, the employment contract inherently required him to travel away from home to perform the employer's business. Furthermore, the employer expanded the scope of the employment to include travel by paying a portion of the claimant's travel costs. See Phillips Contracting, Inc. v. Hirst supra, (payment of travel expense is indicative of travel status). Under these circumstances, travel was contemplated by the employment.
The ALJ's conclusion notwithstanding, we perceive no significant legal difference between an employer who pays for the claimant's travel to the job site and the circumstances, in Hirst, where the employer provided the physical means of transport to the job site. Similarly, the fact that the employer did not provide the claimant with the use of a company vehicle after his arrival in Colorado does not alter the fact that travel away from the claimant's residence was contemplated by the employment contract. Therefore, we conclude that the claimant qualifies as a traveling employee as a matter of law.
Evidence the claimant was dispatched "through the union hall" and that he was actually at his Oklahoma home immediately before he accepted the job in Colorado is not inconsistent with the conclusion that the claimant was a traveling employee. Regardless of whether the claimant heard about the job offer through a union, he was hired by the employer not the union, and the respondents concede that they offered to pay the claimant's mileage from either his home or his last job site. The critical factor is that the travel occurred after the claimant was employed by the employer and at the employer's behest. Further, the mileage allowance was paid by the employer not the union.
Moreover, we recognize that the claimant voluntarily decided to accept out of state employment. It may be said that all claimants voluntarily decide whether to accept employment which requires travel. However, the court has not treated that factor as pertinent to whether a claimant is a traveling employee.
Similarly, it is immaterial whether the claimant was actually working for the employer in Wisconsin at the time he was hired or that he had returned to his home in Oklahoma. It is undisputed the employer agreed to pay the claimant to travel from his location at the time of the hire to the Colorado job site. Thus, the employment contract expressly contemplated the claimant's travel away from home.
We also note that contrary to the ALJ's determination the Hirst court held that the "travel status" doctrine does not distinguish between salaried and nonsalaried employees. Phillips Contracting, Inc. v. Hirst, supra. The Hirst court also stated that the doctrine does not depend on whether the employee is compensated by the employer for transportation, lodging and meals. Rather, the court stated that:
"while these factors may be indicative of business travel when that is an issue in dispute, the absence of one or more of these factors does not, in and of itself, disqualify a claimant from receiving benefits."
Consequently, the ALJ erred insofar as she relied on evidence that the claimant was not paid a per diem, or provided food or lodging in concluding that the claimant was not a traveling employee.
We can imagine circumstances in which an out of state employee hired to permanently work in Colorado is not a traveling employee after the claimant permanently relocates to Colorado. However, we know of no authority for the ALJ's implicit determination that the claimant's "travel status" terminated once he established a temporary residence near the employer's Colorado job site. In fact, the Hirst court stated that there is no distinction between an employee who must travel to a specific location for a period of time and an employee who travels from site to site on a daily basis.
Here, there is no evidence the claimant intended to permanently relocate to Colorado. In fact, the parties stipulated that he only temporarily resided near the job site in Colorado. Therefore, the fact the claimant traveled to the same "assembly point" each day for his job assignment does not distinguish the claimant's situation from the circumstances contemplated for a "traveling employee."
Nevertheless, the respondents contend that the claimant's accident occurred after work, off the employers' premises and did not confer a benefit on the employer. Therefore, they argue that the specific travel which lead to the claimant's injuries had no causal connection to the employment. Unlike other employees "traveling employees" remain in the course and scope of the employment as long as they are not engaged in a personal deviation. Therefore, injuries incurred during acts of personal ministration such as eating, sleeping, bathing, washing, and going to restaurants have been held compensable. See Alexander Film Co. v. Industrial Commission, 136 Colo. 486, 319 P.2d 1074 (1957) ;Archer Freight Lines, Inc. v. Horn Transportation Inc., 32 Colo. App. 412, 514 P.2d 330 (1973) ; 2 Larsons' Workers' Compensation Law § 25.02.
The respondents do not dispute the claimant's testimony that the claimant was traveling in the direction of his temporary lodging at the time of the accident. (Tr. p. 36). The respondents also stipulate that the claimant intended to stop in Rifle to purchase warm, work clothes for King at the time of the accident. We believe that shopping for work clothes with a co-worker who may also be a traveling employee falls within the scope of reasonable ministerial activities contemplated by an employee who is required to work away from home. Therefore, the record would not support a conclusion that the claimant was injured while engaged in a personal deviation. Under these circumstances, the ALJ erred in finding the claimant failed to prove a compensable injury. Therefore, we reverse the ALJ's order and remand the matter for further proceedings concerning the claimant's entitlement to specific workers' compensation benefits.
In view of our disposition, we need not consider the claimant's further arguments in support of his contention that the ALJ erroneously denied the claim.
IT IS THEREFORE ORDERED that the ALJ's order dated July 12, 1999, is reversed and the matter is remanded for further proceedings concerning the claimant's entitlement to specific workers' compensation benefits.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
Copies of this decision were mailed February 10, 2000 to the following parties:
Jimmie W. Thompson, P.O. Box 113, Comanche, OK 73529
Trans Colorado Gas/Gregory Cook Construction Company, 7575 San Felipe St., #350, Houston, TX 77063-1779
Hartford Underwriters Insurance Company, 7670 S. Chester St., #300, Englewood, CO 80112
Laurie Iverson, Hartford Underwriters Insurance Company, 110 Woodland Pl., Park City, UT 84098
J. J. Fraser, III, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Respondents)
BY: A. Pendroy