Opinion
W.C. No. 4-752-922.
December 23, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated September 4, 2008, that denied and dismissed the claim for compensation. We affirm.
The claimant worked for the respondent employer (Peerless) as a tire technician changing and rotating tires. On March 7, 2008, Mr. Victor of the Tire Broker (Victor) came to Peerless to pick up a load of junk tires. The claimant and a fellow employee helped Victor load the junk tires into the back of his truck. Victor asked the store manager of Peerless (manager) if he could "borrow" one of the workers from Peerless to help him remove junk tires from other locations. The claimant and the fellow employee volunteered to help Victor. The claimant accompanied Victor to other locations to retrieve junk tires. The claimant testified that while moving tires at one of the locations he tripped over a tire and injured his right knee.
The ALJ determined that the claimant had failed to demonstrate that it was more probably true than not that he suffered an injury to his right knee during the course and scope of his employment with Peerless. In reaching that determination, the ALJ made the following findings of fact with record support. Although the claimant explained that he believed the Tire Broker's fees would be waived and he would remain "on the clock" if he accompanied Victor to retrieve tires from other locations, his account is inconsistent with the credible testimony of other witnesses. Tr. at 31-32; Victor Depo. at 4-5. The record revealed that the Tire Broker did not waive any fees in exchange for the claimant's help in retrieving junk tires from various locations on March 7, 2008. Tr. at 48. Furthermore, the credible testimony of the store manager, Victor and a fellow employee reflected that the claimant chose to help Victor retrieve tires during an extended lunch break. Tr. at 31, 48; Victor Depo. at 5, 9-10. The manager explained that because the claimant was an hourly employee, he would not be compensated for helping Victor. Tr. at 55. The manager stated that the claimant could use his lunch break to help Victor collect junk tires. Tr. at 56. The manager did not direct the claimant to help Victor retrieve junk tires from other locations. Tr. at 56-57. The incident involving the claimant's right knee thus occurred while the claimant was removing tires from a location off the premises of Peerless and not while performing a function related to his job at Peerless. Tr. at 12, 48; Victor Depo. at 5-6. The ALJ concluded that claimant's right knee condition did not arise out of his employment with Peerless because it did not have its origin in his work-related functions and was not sufficiently related to his job duties to be considered part of his service to Peerless.
The claimant contends that the ALJ erred in ruling that he had failed to prove he suffered a compensable right knee injury during the course and scope of his employment with the respondent employer. The claimant acknowledges that there was controversy surrounding what the agreement was between the manager of Peerless and Victor regarding the "lending" of the claimant. However, the claimant contends he remained "on the clock" with the respondent employer while he was working for Victor and, therefore, the injury must be found to have occurred within the course and scope of his employment with the respondent employer.
Generally speaking, the question of whether a claimant's injury arises out of and in the course of employment is a question of fact to be determined by an examination of the totality of the circumstances. The essential issue is whether the facts demonstrate a "nexus" between the activity which caused the injury and the usual circumstances under which the claimant performs the employment, so that the activity may be considered an incident of employment. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985); L.E.L. Construction v. Goode, 849 P.2d 876, (Colo. App. 1992); rev'd on other grounds, 867 P.2d 875 (Colo. 1994); Banks v. Colorado State University, W. C. No. 4-216-778 (September 29, 1995) aff'd, Susan Banks v. Industrial Claim Appeals Office, W.C No. 95CA1809 (Colo. App. July 18, 1996) (not selected for publication).
Injuries sustained during off premises lunchtime travel usually fall within the "going to and coming from rule," and therefore, are not compensable. Perry v. Crawford Co., 677 P.2d 416 (Colo. App. 1983). As in the "going to and coming from" cases, exceptions exist where "special circumstances" demonstrate a "nexus" between the lunchtime travel and the circumstances of the employment. Such special circumstances have been found where the travel was at the behest of the employer, where the employer receives some special benefit from the travel, or where the employer provided the means of travel. City and County of Denver School District No. 1 v. Industrial Commission, 196 Colo. 131, 581 P.2d 1162 (1978); Berrys Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2 (Colo. 1967); National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 1259 (Colo. App. 1992). None of these factors were found by the ALJ to be present here.
The claimant's arguments notwithstanding, the evidence which the ALJ found persuasive indicates that the claimant was not "on the clock," but rather the claimant chose to help Victor during an extended lunch break. The activity of the claimant on his off premises lunch break was not the idea of Peerless, the claimant was not compelled to help Victor and Peerless received no financial benefits from the activity. These findings support the determination that the claim is not compensable. The mere fact that the evidence might have supported contrary findings and conclusions affords no basis for relief on appeal. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo. App. 1988).
Because the issue is essentially factual in nature we must uphold the ALJ's findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. In applying this rule, we must defer to the ALJ's resolution of conflicts in the evidence, as well as his credibility determinations. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo. App. 1993). In our view the findings made by the ALJ are supported by the testimony of the manager, the fellow employee and Victor and constitute substantial evidence. Therefore, the order must be upheld.
The claimant further argues that the injury must be found to have occurred within the course and scope of his employment with Peerless under the "loaned employee" provisions of § 8-41-303, C.R.S. 2009. That statute provides:
Where an employer, who has accepted the provisions of articles 40 to 47 of this title and has complied therewith, loans the service of any of the employer's employees who have accepted the provisions of said articles to any third person, the employer shall be liable for any compensation thereafter for any injuries or death of said employee as provided in said articles, unless it appears from the evidence in said case that said loaning constitutes a new contract of hire, express or implied, between the employee whose services were loaned and the person to whom the employee was loaned.
We are not persuaded that the provisions of § 8-41-303 apply here. As we read the ALJ's order there was no agreement that Peerless would lend the claimant to the Tire Broker; rather, the claimant volunteered to assist Victor of the Tire Broker on his lunch hour and the manager from Peerless acquiesced in the arrangement. It was on this basis that the ALJ concluded that the claimant had failed to carry his burden to prove by a preponderance of evidence that his right knee back injury arose out of and in the course of his employment. Section 8-41-301(1)(c), C.R.S. 2009; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Faulkner v. Industrial Claim Appeals Office, 12 P.3d 844 (Colo. App. 2000).
Therefore, it does not appear that this case is properly viewed as a "loaned employee" case under § 8-41-303. Moreover, we note that this argument appears to have been first advanced on appeal and therefore we need not consider it. City and County of Denver v. Industrial Claim Appeals Office, 58 P.3d 1162 (Colo. App. 2002); Kuziel v. Pet Fair, 948 P.2d 103 (Colo. App. 1997).
IT IS THEREFORE ORDERED that the ALJ's order dated September 4, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
JUSTYNN WUBBEN, GLEN HAVEN, CO, (Claimant).
PEERLESS TYRE CO., Attn: MS DEBBIE HOUGLAND, DENVER, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
RING ASSOCIATES, PC, Attn: BOB L RING, ESQ., BLDG C, FT COLLINS, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: ALEXANDRA E COLEMAN, ESQ., DENVER, CO, (For Respondents).