W.C. Nos. 4-507-018 4-506-807Industrial Claim Appeals Office.
May 16, 2003
ORDER OF REMAND
In these consolidated workers’ compensation cases, the claimants seek review of an order of Administrative Law Judge Coughlin (ALJ) which denied and dismissed the claims for benefits. The claimants contend the ALJ’s conclusion that a “premium” paid as an incentive for travel to a remote job site did not bring the travel within the scope of the employment was erroneous as a matter of law. We reverse the order and remand for further proceedings.
These claims arise out of a motor vehicle accident which occurred on May 18, 2001. On that date claimant John Hafner (John) was a passenger in a truck driven by his father Mikel Hafner (Mikel). The truck was owned by Mikel. John seeks workers’ compensation benefits for injuries and disability sustained as a result of the accident. Mikel was killed in the accident and his wife and younger son seek death benefits.
Mikel was a journeyman electrician and John was an apprentice electrician. Both were union members employed by respondent Sturgeon Electric (Sturgeon) under the terms of a collective bargaining agreement. Under the agreement Mikel received regular pay of $24.61 per hour and John received $12.06 per hour. At the time of the accident Mikel and John, both of whom resided in Thornton, Colorado, were employed on a job site in Black Hawk, Colorado. Consequently, the two often traveled to the job site together.
The ALJ found that Sturgeon “paid a premium of $1.50 per hour for the Black Hawk” project, and the purpose of the payment was “to provide some incentive for electricians to travel out of the Denver metropolitan area for work in the mountains.” The ALJ further found the premium was “unusual” and coincided with a “thin” labor pool. The employees could use the premium payment as they saw fit, and Mikel contributed his to his pension.
The ALJ found the respective claimants failed to meet their burden of proof to establish that Mikel’s death and John’s injuries arose out of and in the course of the employment. Specifically, the ALJ found that Sturgeon did not require “travel beyond a fixed location established for the performance of duties,” and there was “no persuasive showing that Mikel’s and John’s commuting from Thornton to Black Hawk and back did much more for Sturgeon beyond their mere arrival at work.”
On review, the claimants contend the ALJ’s factual finding that Mikel and John received a “premium payment” for travel to the Black Hawk job site compels the legal conclusion that the injuries arose out of and in the course of employment. Under the circumstances, we agree.
It is certainly true that a claimant has the burden of proof to establish by a preponderance of the evidence that the injury or death was caused by the performance of service arising out of and in the course of the employment. Section 8-41-301(1)(b) and (c), C.R.S. 2002; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). However, the issue becomes one of law if the undisputed facts permit only one legal conclusion. See Industrial Commission v. Lavach, 165 Colo. 433, 439 P.2d 359 (1968); Schrieber v. Brown Root, Inc., 888 P.2d 274
(Colo.App. 1993).
As the parties recognize, injuries sustained while going to and from work are generally not compensable. Whale Communications v. Osborn, 759 P.2d 848 (Colo.App. 1988). However, a number of exceptions have arisen where “special circumstances” demonstrate a sufficient causal relationship between the injury and the employment. These exceptions were recently amplified by the Supreme Court’s opinion in Madden v. Mountain West Fabricators, supra.
The Madden court held that the “proper approach” is to consider a number of variables including, but not limited to: (1) whether the travel occurred during working hours, (2) whether the travel was on or off the employer’s premises, (3) whether the travel was contemplated by the employment contract, and (4) whether the employment created a zone of special danger. If only one variable is present, “recovery depends on whether the evidence supporting that variable demonstrates a causal connection between the employment and the injury such that the travel to and from work arises out of and in the course of employment.”977 P.2d at 865.
The only variable potentially present in this case is that the employment contract contemplated travel. The critical issue in resolving this question is whether the travel was a substantial part of the service to the employer. As the Madden court recognized, travel may be part of the service to the employer if it is “singled out for special treatment.”Id. at 865. Thus, where the employer provides transportation, pays the cost of transportation, or provides compensation for travel, injuries sustained during the travel have a sufficient causal relationship top the employment. Staff Administrators, Inc. v. Reynolds, 977 P.2d 866
(Colo.App. 1999); Industrial Commission v. Lavach, supra; Monolith Portland Cement v. Burak, 772 P.2d 688 (Colo.App. 1989). Moreover, where the employer compensates travel as a special inducement to employment, the employer impliedly agrees to assume responsibility for the period of travel. 1 Larson’s Workers’ Compensation Law, § 14.07[2].
Here, the ALJ found as fact that the $1.50 premium was a special “incentive” paid by Sturgeon to entice workers to travel to the Black Hawk job site. This finding is amply supported by the evidence and by the ALJ’s explicit finding that there was a labor shortage which rendered extra compensation necessary to induce skilled workers to travel away from the local area to the mountain work site. Further, the premium was “unusual” in that it was not being paid to workers performing services in the Denver area. In our view, these findings compel the legal conclusion that the contractual arrangement between Sturgeon and Mikel and John Hafner singled out travel for “special treatment.” This special treatment establishes the travel was a substantial part of the service rendered to the employer, and creates the requisite causal relationship between the requirements of the employment and the accident.
The fact that employees could use the cash payments for purposes other than travel, and that there was no precise correlation between the premium payments and the duration of the travel does not change the result. The issue is not whether the injured worker actually used the payments for travel, but whether the employment contract contemplated compensation for travel. Further, there is no mathematical formula for compensability. The issue is whether the travel was “singled out for special treatment.” Here, the ALJ’s findings establish that it was.
In light of this determination, we need not consider the claimant’s other argument.
The claimants’ motion to strike the respondents’ brief is denied. The brief was transmitted by facsimile in a timely manner. Weather apparently prevented filing by the normal process. We perceive no prejudice to the claimants resulting from the delay in serving the brief. The respondents’ request for attorney fees in responding to the motion is also denied.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 9, 2002, is reversed. The claims are compensable, and the matter is remanded for further proceedings, including a determination of the amount of benefits to which the respective claimants are entitled.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Bill Whitacre
Copies of this decision were mailed May 16, 2003 to the following parties:
Kathleen Hafner, Marc Hafner and John Hafner, 1905 E. 98th Ave., Thornton, CO 80229
Sturgeon Electric, 12150 E. 112th Ave., Henderson, CO 80640-9116
Diane Gutierrez, Zurich Insurance Co., P. O. Box 370308, Denver, CO 80237
Melissa J. Loman Evans, Esq., 3900 E. Mexico Ave., #1300, Denver, CO 80210 (For Claimants)
Marsha A. Kitch, Esq., Bergen Park Business Plaza, 1202 Bergen Pkwy., #311, Evergreen, CO 80439 (For Respondents)
By: A. Hurtado