W.C. No. 4-315-458Industrial Claim Appeals Office.
December 24, 1997
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated August 21, 1997, as corrected on September 17, 1997. The respondents contend that the ALJ erred in finding that the claimant’s husband, John Venoski, (decedent) suffered fatal injuries arising out of and in the course of his employment. We disagree, and therefore, affirm.
The ALJ’s findings of fact may be summarized as follows. The decedent was employed as a traveling salesman whose territory included Colorado Springs and Pueblo. Every Tuesday and Thursday, the decedent would travel from his home in Bailey, Colorado, to Colorado Springs, Colorado to visit customers. At the end of the workday, the decedent would travel north on highway 25 to highway 285 to reach his home.
On Thursday, October 3, 1996, the decedent left his home at approximately 8:00 a.m. to visit customers in Colorado Springs. After making his usual sales calls, the decedent made a personal deviation from his employment to drink with a customer, Mr. Flowers. However, at approximately 7:00 p.m, the deviation ended and the decedent began to drive home on his regular route. The decedent did not engage in any personal deviation while driving home. At approximately 8:30 p.m., the decedent was killed in an automobile accident, which occurred on highway 285, a few miles from his home.
Based upon these findings the ALJ determined that the decedent was in “travel status,” in the course and scope of his employment at the time of the accident. Therefore, the ALJ ordered the respondents to pay death benefits commencing October 4, 1996.
On review, the respondents argue that, as a matter of law, a traveling employee who deviates from employment by consuming alcohol does not return to the employment relationship until he is in the same condition as he was before the deviation. Further, the respondents contends that injuries suffered by a traveling employee after consuming alcohol are the result of the employee’s voluntary decision to drink and not the employment. Therefore, the respondents contend that, under these circumstances, the injuries are not compensable.
The respondents recognize that their arguments were expressly rejected by the court in Wild West Radio, Inc. v. Industrial Claim Appeals Office, 905 P.2d 6 (Colo.App. 1995), where a traveling salesperson was injured while driving to meet a customer. Because the salesperson was intoxicated at the time of the accident, the employer argued that the injuries were not compensable. The employer also argued that the intoxication prevented the salesperson from returning to her employment until she was sober.
The Court of Appeals concluded that there was no legislative intent to preclude all compensation for excessive levels of intoxication. To the contrary, the court held that the penalty provisions in § 8-42-112 C.R.S. 1997, allow compensation to be reduced, but not barred for misconduct which results in injuries. Therefore, in Wild West Radio, Inc. v. Industrial Claim Appeals office, supra, the court rejected the notion that an intoxicated employee cannot be in travel status, and in the course of employment.
The respondents contend that Wild West Radio, Inc. v. Industrial Claim Appeals office, supra, was wrongly decided. However, we are bound by published decisions of the Court of Appeals. C.A.R. 35(f). Therefore, we must reject the respondents’ contention.
We also reject the respondents’ assertion that this claim is factually distinguishable from the circumstances in Wild West Radio, Inc. v. Industrial Claim Appeals office, supra. The respondents contend that unlike the claimant in Wild West, the decedent finished meeting with customers earlier in the day, and was not driving to further the interests of the employer at the time of the accident. Therefore, they contend that the decedent’s travel status ended before the accident.
The respondents’ arguments involves a factual distinction without a difference. This is because a “traveling employee” is considered to be within the course of his employment, and acting for the benefit of his employer, from the time he leaves home to the time he returns, except when engaged in any personal deviation. 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); Continental Airlines v. Industrial Commission, 709 P.2d 953 (Colo.App. 1985). Consequently, the courts have upheld compensation awards to traveling employees who are injured while driving home, even if the drive home is after a personal deviation to consume alcohol See Electric Mutual Liability Co. v. Industrial Commission, 154 Colo. 491, 391 P.2d 677 (1964) Rainbow Bread Company v. Claimant’s in the Matter of the Death of Smith, 519 P.2d 1208
(Colo.App. 1974); Mohawk Rubber Company v. Claimant’s in the Death of Kribbs, 440 P.2d 785 (Colo. 1968).
Alternatively, the respondents argue that the record does not support the ALJ’s finding that the decedent’s personal deviation ended and that the decedent was on his way home at the time of the accident. We disagree.
Where a traveling employee is injured following a personal deviation, the employee bears the burden to prove that the deviation ended prior to the injuries. Rand v. Industrial Commission, 110 Colo. 240, 132 P.2d 784 (1942). Whether the employee sustained that burden of proof is a question of fact for the ALJ. Wild West Radio, Inc. v. Industrial Claim Appeals Office, supra. Therefore, we must uphold the ALJ’s factual determinations if supported by substantial evidence in the record.
Substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence. Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995). Furthermore, where the evidence is subject to conflicting inferences, it is the ALJ’s sole province to decide the inference to be drawn and we may not interfere with that determination. Wackenhut Corporation v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA0726, December 11, 1997)
As argued by the respondents, Mr. Flowers testified that when he left the decedent at 7:00 p.m., the decedent indicated that he was headed for a motel. (Tr. p. 40). The respondents contend that because Mr. Flowers’ testimony is the only “affirmative evidence” concerning the decedent’s plans, the record does not support the ALJ’s inference that the decedent was on his way home at the time of the accident.
The respondents’ arguments notwithstanding, even uncontroverted evidence is not binding on the ALJ. Casa Bonita Restaurant v. Industrial Commission, 624 P.2d 1340 (Colo.App. 1981). Furthermore, an ALJ’s findings of fact may be based upon circumstantial evidence. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
A logical inference from the evidence that the decedent was driving on his normal route home and was within a few miles from his home at the time of the accident, is that the decedent changed his mind and decided not to stay in a motel that night. Moreover, the respondents did not present evidence that the decedent was on highway 285 for any reason other than going home at the time of the accident. See (Tr. pp. 29, 32). Thus, the ALJ could, and did reasonably infer that the decedent was on his way home and not engaged in any personal deviation at the time of the accident.
We also note that the ALJ’s inference is consistent with the claimant’s testimony. The claimant stated that on the morning of October 3, she and the decedent discussed the possibility that he would stay overnight in a motel, but nothing definite was decided. (Tr. pp. 23, 30). She also testified that the decedent did not call her and say that he was staying in a motel. (Tr. p. 24). Further, the claimant testified that it was not unusual for the decedent to get home as late as 10:00 p.m. Under these circumstances, we may not disturb the ALJ’s finding that the decedent’s injuries arose out of and in the course of his employment.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 21, 1997, as corrected September 17, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Kathy E. Dean
______________________________ Dona Halsey
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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1997.
Copies of this decision were mailed December 24, 1997 to the following parties:
Joell L. Venoski, 804 Desperado Rd., Bailey, CO 80421
Rambrook Neel Corp., 1355 Kuehner Dr., Simi Valley, CA 93063
Liberty Mutual Insurance Co., Attn: Teresa Manshardt, P.O. Box 3539, Englewood, CO 80155-3539
Jordan S. Levine, Esq., 3515 S. Tamarac Dr., Ste. 200, Denver, CO 80237 (For the Claimant)
Scott M. Busser, Esq., 300 S. Jackson St., Ste. 570, Denver, CO 80209 (For the Respondents)
Jonathan S. Robbins, Esq., 1120 Lincoln St., Ste. 1606, Denver, CO 80203 (For the Respondents)
John Evans, Esq., 1441 18th St., #100, Denver, CO 80202-1256
BY: __________________________