Opinion
W.C. No. 4-481-581
November 30, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gartland (ALJ) which determined the claimant suffered a compensable injury and awarded workers' compensation benefits. We affirm.
The claimant was employed as an overnight cashier at a Wal-Mart store. Her shift began at 8:00 p.m. At approximately 7:30 p.m. on June 16, 1999, the claimant was injured when she fell in the parking lot outside the store. At the time of the injury the claimant was walking across the parking lot to enter the store and begin her shift.
The ALJ determined the injury occurred in the course of employment because the claimant was injured on the employer's premises during a reasonable interval before she was scheduled to begin her shift. Further, the ALJ determined that walking to the store from the parking lot was a preparatory act of employment. Consequently, the ALJ determined the injury arose out of the employment and ordered the respondents to pay medical benefits, temporary disability benefits and penalties. The respondents timely appealed.
On review the respondents contend the injury did not arise "out of" the employment, but was the result of an "unexplained" fall or a pre-existing condition which did not combine with a "special hazard" of the employment. Further, they contend the injury did not occur "in the course of" employment because the claimant was outside the time and place limits of the employment at the time of the injury. We disagree.
To prove a compensable injury the claimant must establish that the injury arose out of and in the course of employment. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). 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 that had some connection with her work-related functions. See Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991).
Contrary to the claimant's contentions, the "going to and coming from" rule applies to injuries which occur off the employer's premises while the claimant is traveling to or from work. However, once the claimant arrives at work and is on the employer's premises, the rule is no longer applicable. See Roache v. Industrial Commission, 729 P.2d 991 (Colo.App. 1986); Perry v. Crawford Co., 677 P.2d 416 (Colo.App. 1983).
Parking lots maintained or owned by the employer are generally considered to be part of the employer's premises. Consequently, any injury which would be compensable if sustained on the employer's main premises is also compensable if sustained in the employer's parking lot. See Larson's Workers' Compensation Law, § 13.04 [2] [a][b] (1999).
Regardless of whether the claimant was required to drive to work, the stipulated evidence indicates the employer provided a parking lot for its employees, and restricted employee parking to further its business interests. ( See Tr. p. 47). The claimant was injured in the parking lot after parking her car in the area designated for employee parking. Therefore, we disagree with the claimant that the "going to and coming from" rule is applicable to this claim.
Next, we reject the respondents' contention the ALJ erred in finding the injury occurred within the time limits of the employment. The "course of employment" embraces a reasonable interval before working hours when the employee is on the employer's property engaged in preparatory acts of employment. Larson, Workers' Compensation Law § 21.06(1)(a) (1999); Industrial Commission v. Hayden Coal Co., 113 Colo. 62, 155 P.2d 158 (1944) (an interval up to thirty five minutes has been allowed for the arrival and departure from work); Ventura v. Albertson's Inc., 856 P.2d 35 (Colo.App. 1992). What constitutes a reasonable interval depends not only on the length of time involved but also on the circumstances occasioning the interval and the nature of the employee's activity. Furthermore, when there is some legitimate special reason why the employee needs a longer- than-normal interval, the course of employment may be extended to surround the extra time. Larson § 21.06(1)(b) (1999).
Here, the claimant testified that she normally arrived for work 30 minutes before her actual shift because she was walked slow and she wanted time to get her appearance ready for work. (Tr. p. 38). The respondents presented no evidence the employer objected to the claimant's early arrival as long as the claimant did not "clock in" before the actual start of her shift. Therefore, the record supports the ALJ's determination that the course of the claimant's employment included a 30 minute interval prior to 8:00 p.m.
The ALJ also rejected the respondents' contention the claimant failed to park in the area designated for employees and, thus, was not in the course of her employment at the time of the injury. Again, we perceive no error.
The claimant and her husband testified that they were instructed by the employer not to park in any of the parking spaces closest to the entrance. (Tr. p. 28). The claimant's husband testified that they regularly parked several rows back and he thought that complied with the employer's instructions. ( See Tr. pp. 12, 42, 68). There is no evidence of a written parking policy and no evidence the claimant was ever disciplined for parking in the wrong area. Under these circumstances, the ALJ reasonably inferred the claimant accommodated the employer's directions on the day of the injury.
Neither do we perceive any basis to interfere with the ALJ's determination that the injury "arose out of" the employment. The "arising out of" test is one of causation and requires that the injury occur while the claimant is "performing service" arising out of the employment. Section 8-41-301(1)(b), C.R.S. 2001. However, there is no requirement that the activity be a strict duty or obligation of employment. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). Rather, it is sufficient if the injury arises out of a risk which is reasonably incidental to the conditions and circumstances of the particular employment. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995). This includes discretionary activities on the part of the employee which are devoid of any duty component and unrelated to any specific benefit to the employer. Industrial Commission v. Hayden Coal Co., supra, (where claimant arrived 1 hour early for work to use washroom and change and was injured while rushing to clock in for shift, injury occurred while performing a work-related function).
The determination of whether there is a sufficient "nexus" or causal relationship between the claimant's employment and the injury is one of fact which the ALJ must determine based on the totality of the circumstances. In Re Question Submitted by the United States Court of Appeals, 759 P.2d 17 (Colo. 1988); Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996). We must uphold the ALJ's determination if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2001; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Moreover, the ALJ's finding may be inferred from circumstantial evidence. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
We do not dispute that where a pre-existing idiopathic condition causes the claimant to fall, the injury does not arise out of the employment unless the claimant proves a causal connection between the employment and the fall. Irwin v. Industrial Commission, 695 P.2d 763 (Colo.App. 1984). Thus, a completely unexplained fall is not compensable. See Finn v. Industrial Commission, 165 Colo. 106, 437 P.2d 542 (1968). However, those are not the circumstances presented here.
The claimant admitted she did not know exactly why she fell. (Tr. pp. 13, 28). However, she stated she found a dark, greasy substance on her clothes after the fall. (Tr. p. 13). Her husband, who was a witness to the injury, testified that he saw a greasy substance on the pavement where the claimant fell that looked like antifreeze or transmission oil. (Tr. pp. 43, 47). Based upon this circumstantial evidence the ALJ could, and did, reasonably infer the claimant fell because she slipped on a oily substance on the asphalt in the parking lot. See Pacesetter Corporation v. Collett, ___ P.3d ___ (Colo.App. No. 00CA2099, May 10, 2001).
We also disagree with the respondents' contention the ALJ erred in determining the claimant sustained her burden to prove the injury was the result of a "special hazard." The "special hazard" rule provides that where the precipitating cause of an injury is a pre- existing, non-industrial condition which the claimant brings to the workplace, the injury is not compensable unless a "special hazard" of the employment combines with the pre-existing condition to cause the injury. See National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 763 (Colo.App. 1992); Ramsdell v. Horn, 781 P.2d 150(Colo.App. 1989); Gates v. Rubber Co. v. Industrial Commission, 705 P.2d 6 (Colo.App. 1985).
The claimant had a previous right knee injury which caused her knee to remain sore. As a result, she occasionally used an electric cart at work. The ALJ found the prior knee injury "may have contributed" to the fall. Nevertheless, the ALJ's finding that the injury occurred when the claimant slipped on a greasy substance on the surface of the asphalt parking lot supports his determination that the claimant sustained her burden to prove the pre-existing condition combined with a "special hazard" of the employment to cause the injury. ( See Finding of Fact 12).
Moreover, the courts have treated injuries sustained while an employee is leaving work and walking through the employer's parking lot as "arising out of" the employment because the employer is required to "furnish safe means of ingress and egress to and from the working place." State Compensation Insurance Fund v. Walter, 143 Colo. 549, 354 P.2d 591, 592 (Colo. 1960); Friedman's Market, Inc. v. Welham, 653 P.2d 760 (Colo.App. 1982) ; Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo. App. 92, 554 P.2d 705 (Colo.App. 1976); cf. Seltzer v. Foley's Department Store, W.C. No. 4-432-260 (September 21, 2000).
In Harrell v. Sam's Wholesale Club, W.C. No. 4-443-255 (April 10, 2001), the claimant was employed by Sam's Wholesale Club. The claimant's work shift began at 10:00 a.m., however, the claimant normally arrived at work 30 minutes early, and the employer did not object. One day the claimant injured her ankle when she slipped and fell on ice in the employer's parking lot. At the time of the injury the claimant was walking from her car to the loading dock entrance of the store to begin her work shift. We upheld an ALJ's determination that the claimant's injury arose out of the employment because it occurred during a preparatory act of employment. The court agreed with our conclusions and affirmed our order in Sam's Wholesale Club v. Industrial Claim Appeals Office (Colo.App. No. 01CA0778, November 23, 2001) (not selected for publication).
The facts presented here are not significantly different than the facts in Harrell. Consequently, we perceive no basis to treat this claim differently.
IT IS THEREFORE ORDERED that the ALJ's order dated May 9, 2001, 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. 2001. 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 November 30, 2001 to the following parties:
Janet L. Wood, Robert D. Dawes, Esq., 572 E. 3rd Ave., Durango, CO 81301
Wal-Mart Stores, Inc., 1155 Camino Del Rio, Durango, CO 81301-5105
American Home Assurance Co., Claims Management, Inc., P. O. Box 1288, Bentonville, AR 72712-1288
Robert D. Dawes, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
Harvey D. Flewelling, Esq. and James R. Clifton, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: A. Pendroy