Opinion
W.C. No. 4-463-547.
September 24, 2003.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Gartland (ALJ) which determined the claimant failed to prove a compensable injury under the "quasi-course of employment" doctrine. We affirm.
The pertinent facts are undisputed. The claimant suffered admitted injures to his neck and shoulder in 2000. Following a Division-sponsored independent medical examination (DIME), the claimant filed an application for hearing to overcome the DIME physician's medical impairment rating. The claimant also requested additional medical benefits and benefits for permanent total disability.
In defense of the claim for permanent total disability benefits, the respondents retained Torrey Beil (Beil) to conduct a vocational evaluation and provide testimony concerning the claimant's employability. At the respondents' request, the claimant and his wife traveled from their home in Cortez to Durango on September 22, 2002, to meet with Beil. It is undisputed the claimant had no business in Durango except the appointment with Beil.
After the appointment with Beil, the claimant and his wife went to a restaurant so the claimant could eat while he took medication prescribed for the industrial injury. While driving from the restaurant to Cortez, the claimant was involved in a motor vehicle accident, which caused a new neck injury. The claimant alleged the new injury is a compensable consequence of the original industrial injury under the "quasi-course of employment" doctrine.
The quasi-course of employment doctrine applies to post-injury activities undertaken by the employee which, although they take place outside the time and space limits of the employment and would not usually be considered employment activities, are nevertheless related to the employment in the sense that they are necessary or reasonable activities that would not have been undertaken but for the compensable injury. Excel v. Industrial Claim Appeals Office, 860 P.2d 1393 (Colo.App. 1993); Travelers Insurance Co. v. Savio, 706 P.2d 1258 (Colo. 1985). Accordingly, injuries sustained while a claimant is engaged in authorized medical treatment for the industrial injury are compensable. Price Mine Service, Inc., v. Industrial Claim Appeals Office, 64 P.3d 936 (Colo.App. 2003).
Here, the ALJ found that, although the claimant was obligated to attend the meeting with Beil, the respondents were not obligated to provide a vocational evaluation. Therefore, the ALJ determined the new injury did not occur during an activity which was an implied part of the employment contract. Rather, the ALJ determined the claimant was injured during an activity undertaken by the parties as part of the litigation process, similar to the circumstances in Jarosinski v. Industrial Claim Appeals Office, 62 P.3d 1082 (Colo.App. 2002). Consequently, the ALJ determined the new injury is not compensable.
On review, the claimant contends the ALJ misapplied the law and erroneously distinguished between attendance at a vocational evaluation and attendance at a medical appointment in finding the new injury is not compensable. We disagree.
It is well established that a compensable injury is an injury which bears a causal connection the employment. Staff Administrators Inc., v. Reynolds, 977 P.2d 866 (Colo. 1999). Under the "quasi-course of employment" doctrine, an injury occurring during travel to or from authorized medical treatment is compensable because the employer is required to provide medical treatment for the industrial injury and the claimant is required to submit to the treatment. Jarosinski v. Industrial Claim Appeals Office, 62 P.3d at 1085. Therefore, the treatment becomes an implied part of the employment contract, and injuries sustained while attending the authorized medical treatment, are considered to be a consequence of the original industrial injury. In contrast, a claimant's travel to an unauthorized provider contains no inherent connection to the employment and, thus, injuries while traveling to and from unauthorized treatment are not compensable. See Schreiber v. Brown Root, Inc., 888 P.2d 274 (Colo.App. 1993).
In Jarosinski the court held that if the element of a contractual obligation is missing, the resulting injures are not compensable under the quasi-course of employment doctrine. Id. at 1085. Accordingly, the court held that problems resulting from a claimant's negative psychological reaction to the litigation process are distinguishable from the type of injuries covered by the quasi-course of employment doctrine. The court reasoned that when a claimant is presenting evidence and making argument in support of a claim for benefits, he or she is not performing an activity that may fairly be characterized as a service or activity inherent in the employment contract. Id. at 1085. Similarly, the court held that when the respondents are exercising their statutory right to defend a claim by presenting evidence adverse to the claimant, they are not engaged in an activity secondary to the employment contract. Id. at 1085.
Moreover, the court in Jarosinski noted that if "litigation stress" injuries were compensable, respondents would be required to calculate, to the extent they are able, whether the benefits of successful litigation are likely to outweigh the potential costs if the claimant experiences a psychological reaction to an adverse ruling. Under such circumstances, "respondents might forgo the presentation of valid defenses and drive up employers' costs of procuring workers' compensation insurance," which would be contrary to the statutory purposes of assuring the quick and efficient delivery of benefits at a reasonable cost to the employer. Id at 1085; § 8-40-102(1), C.R.S. 2002.
As argued by the claimant, § 8-43-404(1), C.R.S. 2002, requires claimants to submit to vocational evaluations provided and paid by the respondents. Furthermore, § 8-43-404(3), C.R.S. 2002, authorizes the reduction or suspension of compensation for a claimant who fails to submit to a vocational evaluation.
However, the ALJ correctly determined that the applicable law does not require the respondents to provide a vocational evaluation or vocational rehabilitation. Former § 8-49-101(4), C.R.S. (1986 Repl. Vol. 3B), required the respondents to provide medical benefits in the form of vocational rehabilitation where a claimant was unable to return to suitable employment. See State Compensation Insurance Fund v. Velasquez, 628 P.d. 190 (Colo.App. 1981). However, § 8-49-101(4) was repealed in 1987 [ see 1987 Colo. Sess. Laws, ch. 51 at 387-394, effective July 1, 1987], and under the law applicable to this claim, vocational rehabilitation services are optional in defending a claim of permanent and total disability. Section 8-42-111(3), C.R.S. 2002. Under these circumstances, we agree with the ALJ that the element of a contractual obligation to provide vocational services was missing from the respondents' actions in arranging the vocational evaluation by Beil. Rather, the respondents requested that the claimant submit to a vocational evaluation by Beil for purposes of obtaining evidence to defend the claim for permanent total disability benefits. Under these circumstances, we conclude the relevant activity is akin to activities undertaken by parties engaged in litigation, not a quasi-contractual exchange of benefits and responsibilities.
We also note that if the scope of foreseeable and compensable consequences of an industrial injury includes injuries sustained during travel to meet with vocational experts, respondents may be inclined to forego the use of vocational experts when travel is required, which could drive up the cost of premiums. Because this would be contrary to the legislative purpose of § 8-40-102, we conclude injuries sustained while attending a vocational evaluation are beyond the scope of the quasi-course of employment doctrine. Therefore, we perceive no error in the ALJ's determination that the new injury is not compensable.
IT IS THEREFORE ORDERED that the ALJ's order dated May 29, 2003, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed September 24, 2003 to the following parties:
Terry L. Turner, 502 E. Montezuma Ave., Cortez, CO 81321
Waste Management of Colorado, 1001 Fannin St., #400, Houston, TX 77002
Reliance National Indemnity, c/o Dana Brendemuhl, Gallagher Bassett Services, Inc., P. O. Box 4068, Englewood, CO 80155-4068
Gail C. Harriss, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
Kathleen M. Fairbanks, Esq., 999 18th St., #1600, Denver, CO 80202 (For Respondents)
BY: A. Hurtado