Opinion
W.C. No. 4-440-595
October 18, 2001
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which denied and dismissed the claim for workers' compensation benefits. The claimant argues the ALJ erred in concluding the facts do not establish that her fall in a parking lot arose out of and in the course of employment. We reverse the order and remand the matter for further proceedings.
The claimant was injured on December 3, 1997, when she slipped and fell in a parking lot adjacent to the building where she was employed. The building, located in the Denver West Office Park, was leased to the claimant's employer, National Renewable Energy Lab (NREL). Under the terms of the lease, the lessor expressly agreed "to provide 217 parking spaces" adjacent to the leased building. The claimant testified the "Tier 2" parking level, where she fell, is primarily used by NREL employees, although the ALJ found that neither NREL nor the lessor restricts the public from parking in this area.
NREL maintains a security force known as "Protective Force Officers." The ALJ found these officers provide building security and "drive the parking areas" adjacent to Building 16, but "have no jurisdiction over the parking areas and may not challenge suspicious persons." If the security officers observe a parking lot hazard, they report it to NREL's central monitoring station, which in turn reports the hazard to the lessor or calls public law enforcement. However, as a courtesy to its employees, NREL maintains a voluntary vehicle registration service. If the security officers observe a problem with a registered employee's vehicle, such as the lights being left on or vandalism, the employee is notified.
Citing Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999), the ALJ found the claimant failed to prove an injury arising out of and in the course of employment because the claimant failed to demonstrate a sufficient "nexus between her slip and fall injury and her employment." In support of this determination, the ALJ found the "only connection" between the claimant's injury and her employment "is that it occurred in the public parking lot adjacent to the building" where she worked. The ALJ also found the injury occurred before working hours because the claimant had not yet checked in, and there is "no evidence that NREL or claimant contemplated that claimant's travel to and from work would be part of the employment contract."
On review, the claimant contends the findings of fact establish the injury is compensable because it occurred on the employer's premises, and because the employer's provision of the parking lot constituted a benefit to the employee under the employment contract. We agree with these arguments.
For an injury to be compensable under the Workers' Compensation Act, it must arise out of and in the course of employment. Section 8-41-301(1)(b), C.R.S. 2001. As a general rule, an injury sustained while traveling to and from employment does not arise out of and in the course of employment because travel to and from work is not considered to be part of the performance of services contemplated by the employment contract. However, the courts have recognized many exceptions to this rule. The court in Madden v. Mountain West Fabricators, supra, listed four factors which are relevant, although not necessarily exhaustive, to determining whether travel arose out of and in the course of employment. These factors are: (1) whether the travel occurred during work 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." 977 P.2d at 864.
Whether the claimant has established a sufficient causal connection between an injury and the circumstances of employment is generally one of fact for determination by the ALJ. See Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App. 1995). However, if only one inference can be reasonably drawn from the undisputed facts, the issue becomes one of law. Schreiber v. Brown and Root, Inc., 888 P.2d 274 (Colo.App. 1993). We hold this is such an instance.
First, the ALJ's findings of fact establish that NREL specifically negotiated for and obtained in its lease an interest in 217 spaces in the lessor's parking lot, adjacent to Building 16. In our view, the only logical conclusion to be drawn from this provision is that NREL contracted for parking spaces to ensure that parking would be available for NREL's business. Thus, whether or not the parking lot was technically NREL's "premises," NREL held a specific contractual interest in the parking lot. In our view, this contractual interest is sufficiently similar to an interest in leased property that the injury may be said to have occurred on the "employer's premises" for purposes of Madden v. Mountain West Fabricators, supra.
Further, we believe the evidence establishes as a matter of law that the claimant's use of the parking lot was "contemplated" by her contract of employment. In Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo. App. 92, 554 P.2d 705 (1976), the court held that an injury sustained in a parking lot operated by the landlord of the employer (Woodruff) was compensable. In that case, parking was provided free of charge to Woodruff's employees, but Woodruff had no ownership interest in the parking lot, nor did it control the parking lot. Nevertheless, the court stated that Woodruff was aware its employees used the lot, and concluded the "parking privileges constituted an obvious fringe benefit to claimant."
Here, as in Woodruff, use of the parking lot was provided free of charge to the claimant and constituted an "obvious fringe benefit" which NREL secured for its employees through its lease negotiations. Further, NREL's security force watched for hazards in the parking lot and rendered courtesy services to employees who registered their vehicles with the employer. Under these circumstances, we hold the ALJ's findings establish use of the parking lot and related security services was a benefit under the claimant's contract of employment with NREL.
We are cognizant of the ALJ's finding that the public used the parking lot without charge and that public access was not "restricted." However, the public did not receive the benefit of the courtesy services provided by NREL's security force. Further, if public use of the lot began to interfere with NREL's employees' use, the lease would afford NREL legal recourse to protect its employees' parking privileges. Thus, contrary to the ALJ's finding, the record does not establish that this was a "public parking lot" in the sense that the public's use of the lot was on a legal plane equal to the right of NREL employees. Finally, we note that although the claimant in the Woodruff case obtained a "parking sticker," nothing in the facts of that case establishes the landlord actively restricted public access to the parking lot.
Under these circumstances, the ALJ's order is reversed insofar as it determined the claimant did not sustain a compensable injury. The matter must be remanded for entry of a new order determining the benefits the claimant is entitled to receive.
IT IS THEREFORE ORDERED that the ALJ's order dated July 28, 2000, is reversed, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
Copies of this decision were mailed October 18, 2001 to the following parties:
Valerie C. Tyler, 5201 Xanadu St., Denver, CO 80239
Midwest Research Institute/National Renewable Energy Laboratory, 1617 Cole Blvd., Golden, CO 80401-3305
Employers Insurance of Wausau, Tom Held, Wausau Insurance Companies, 200 S. Wilcox, #426, Castle Rock, CO 80104
Gregory B. Washington, Esq., 9557 S. Kingston Court, Englewood, CO 80112 (For Claimant)
Larry R. Martinez, Esq., and Lori F. Welty, Esq., 370 17th St., 26th floor, Denver, CO 80202 (For Respondents)
BY: A. Pendroy