Opinion
W.C. No. 4-789-747.
July 2, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated April 12, 2010 that determined the claimant's injury was not compensable and denied the claim for medical benefits. We affirm.
The claimant sought medical benefits for a right shoulder injury sustained during an employer-sponsored hockey game. After a hearing the ALJ ultimately issued specific findings of fact and conclusions of law. Several of the ALJ's findings of fact are summarized as follows. The employer hired the claimant to be its financial administrator. Near the time of his hire the claimant misrepresented his qualifications. The hearing officer was persuaded that the misrepresentation was substantial and material and found the claimant's uncorroborated testimony to be unreliable. The claimant travelled to a resort owned by the employer to attend the employer's annual holiday party. However, the ALJ found that the claimant travelled to the resort under his contract for hire and attended business meetings. During his stay at the resort the claimant voluntarily participated in a street hockey tournament organized by employees. The claimant contended that he injured his right shoulder while playing street hockey. The ALJ found that the claimant's voluntary participation in the street hockey tournament constituted a deviation from his employment.
The ALJ concluded that although the claimant was in travel status, any injury the claimant sustained occurred during a deviation from his employment so substantial that it removed the street hockey activity from the employment relationship. The ALJ further concluded that the claimant's injury during the street hockey tournament was excluded from his employment activity pursuant to § 8-40-201(8), C.R.S. (excluding from employment the employee's participation in voluntary recreational activity regardless of whether employer sponsored the activity). It is unclear whether the ALJ found that the claimant actually sustained an injury, but his findings are sufficient for the purposes of our review.
The claimant concedes the ALJ's findings and conclusions to the effect that he voluntarily participated in the hockey game, which constitutes a recreational activity. We therefore find the ALJ's application of § 8-40-201(8) to be dispositive. See White v. Industrial Claim Appeals Office, 8 P.3d 621 (Colo. App. 2000) (application of statute dispositive where injury sustained during voluntary weightlifting determined to be recreational activity); Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141, 1142-43 (Colo. App. 1998) (upholding compensability of claimant's injury incurred in activity during mandatory company party, but noting that compensation would be denied where claimant's participation in recreational activity is voluntary); accord Lopez v. American Lumber Construction, W.C. No. 4-434-488 (October 29, 2003) (decedent's death found to occur during voluntary participation in recreational activity, an employer-sponsored camping trip, not compensable); Finn v. United Parcel Service, Inc., W.C. No. 4-757-425 (January 13, 2009) (injury sustained while setting up picnic and rodeo neither recreational nor voluntary, but recognizing that compensation denied if participation in recreational event is voluntary).
Nonetheless, the claimant disputes the ALJ's determination that his activities constituted a substantial deviation from his employment. In support of his contention the claimant asserts that he remained in travel status in the "broader sense" pursuant to case law. We are not persuaded that the claimant is entitled to relief pursuant to his alternate theory that he was in travel status at the time of his injury.
To be compensable, an employee's injury must have been sustained while performing services arising out of and in the course of the employment at the time of the injury. Section 8-41-301(1)(b), C.R.S.; Panera Bread, LLC v. Industrial Claim Appeals Office, 141 P.3d 970 (Colo. App. 2006). An injury "arises out of employment when it has its origin in an employee's work-related functions and is sufficiently related to those functions to be considered part of the employee's services to the employer in connection with the contract of employment. Id. An employee whose work requires travel away from the employer's premises 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 and is therefore engaged in a substantial, personal deviation. Employer's Liability Assurance Corp. v. Industrial Commission, 147 Colo. 309, 363 P.2d 646 (1961); Alexander Film Co. v. Industrial Commission, 136 Colo. 486, 319 P.2d 1074 (1957); Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo. App. 1995). The existence of a substantial, personal deviation and whether the claimant proved the deviation ended before the injury occurred are generally questions of fact. Roache v. Industrial Commission, 729 P.2d 991 (Colo. App. 1986); see also, Kelly v. Industrial Claim Appeals Office, 214 P.3d 516 (Colo. App. 2009) (applying substantial deviation principles to route of travel for quasi-course of employment medical treatment on substantial evidence basis).
In support of his contention that he was in travel status at the time of his injury the claimant refers to the case of Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo. App. 1995), in which the claimant was injured when the company vehicle in which he was riding caused a motor vehicle accident. The claimant and others went to town from a remote job site to do laundry and buy winter clothing. After completing personal errands the employees went to a bar where the claimant's co-worker drank alcohol. The co-worker then began driving the vehicle back to the job site and caused an accident that resulted in serious injury to the claimant. The claimant here argues that the court in Hirst upheld a finding that the claimant's injuries were compensable because he was a traveling employee under "continuous coverage." However, the court had determined that any deviation at the bar ended and the claimant returned to travel status when the claimant and the co-worker were on their way back to the job site. Here, the ALJ determined that the claimant was injured during his participation in the street hockey tournament, which the ALJ construed to be a deviation. Therefore, contrary to the fact pattern in Hirst, the claimant had not returned from his deviation prior to being injured.
Moreover, the court in Hirst explained that when a personal deviation is asserted, the issue is whether the activity giving rise to the injury constituted a deviation from employment so substantial as to remove it from the employment relationship. Here the claimant voluntarily participated in an employer-sponsored hockey game. In our view, the clear intent of the General Assembly is to exclude participation in voluntary recreational activity from the employment relationship. We note that this case does not involve the traditional test of whether the claimant was injured during a recreational activity. See Karlin v. Conard 876 P.2d 64 (Colo. App. 1993). Here the claimant concedes in his brief that he does not challenge the ALJ's finding that his participation in the hockey game was voluntary. Rather the claimant argues that a finding that he was injured during voluntary participation in a recreational activity does not constitute a substantial deviation under the travel status rule.
In the definition section of the Workers' Compensation Act (Act) found in § 8-40-201(8) C.R.S. the General Assembly broadly defined "employment" but specifically stated that employment shall not included "the employee's participation in a voluntary recreational activity or program, regardless of whether the employer promoted, sponsored, or supported the recreational activity or program." The General Assembly went further and in § 8-40-301(1) C.R.S. which is the section of the Act defining the scope of the term "employee" provided that the term "employee" excludes any person while participating in recreational activity. Clearly the intent of the General Assembly was to remove the participation in a voluntary recreational activity from the employment relationship. In interpreting statutes, we are instructed to give effect to the legislature's intent, and if the statutory language is clear and unambiguous, we give the words their ordinary meaning and apply the statute as written. See Cochran v. West Glenwood Springs Sanitation Dist, 223 P.3d 123, 125-26 (Colo. App. 2009). Therefore in our opinion, the instant case presents the type of injury incurred during a deviation from employment so substantial as to remove it from the employment relationship as envisaged by the court in Hirst.
The claimant argues that his participation in the street hockey game did not constitute a substantial deviation from his travel status because the evidence and findings fail to establish that he was engaged in a deviation for his sole benefit as was found in Kater v. Industrial Commission, 728 P.2d 746 (Colo. App. 1986), in which the injured employee engaged in horseplay found to be for her sole benefit. In cases concerning horseplay the fact-finder applies a four-part test, one part of which concerns "the completeness of the deviation, i.e., whether it was commingled with the performance of a duty or involved in an abandonment of duty." Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715, 718 (Colo. App. 1995). However, none of the factors is dispositive in determining whether the claimant was engaged in a substantial deviation from his employment. Panera Bread, LLC v. Industrial Claim Appeals Office, 141 P.3d 970, 973 (Colo. App. 2006). Instead, the fact-finder must examine the deviation under the totality of the circumstances. Wallace v. Personnel Pool, Inc., W.C. No. 4-445-463 (May 8, 2001).
There is record support for the ALJ's determination that the claimant was engaged in a substantial deviation at the time of his injury. For example, the ALJ found that party organizers such as another employee, Ms. Staley, scheduled the street hockey tournament and that participation in the tournament was voluntary. Tr. (12/4/09) at 183, 186, 188-89, 253. The tournament was scheduled during holiday party festivities. Tr. (12/4/09) at 185-86. The ALJ's findings are supported by substantial evidence and binding on review. Section 8-43-301(8), C.R.S. We are not persuaded by the claimant's arguments that the ALJ erred by denying his claim based on an injury sustained during the street hockey tournament. Section § 8-40-201(8), C.R.S.; see also Jinkins v. SOS Staffing Services, Inc., W.C. No. 4-705-621 (September 7, 2007) (denying claim for injury sustained playing with football during work break).
IT IS THEREFORE ORDERED that the ALJ's order dated April 12, 2010 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
PATRICK MCLACHLAN, LITTLETON, CO, (Claimant).
CENTER FOR SPINAL DISORDERS, PC, Attn: TONI WELTER/KAREN NUNEZ, 9005 GRANT STREET, THORNTON, CO, (Employer)
THE HARTFORD INSURANCE GROUP, Attn: SHARON N TAYLOR, C/O: TWIN CITY FIRE INSURANCE CO, HOUSTON, TX, (Insurer).
THE ELLIOTT LAW OFFICES, PC, Attn: MARK D. ELLIOTT, ESQ., ARVADA, CO, (For Claimant).
HALL EVANS, LLC, Attn: DOUGLAS J KOTAREK, ESQ., DENVER, CO, (For Respondents).