IN THE MATTER OF THE CLAIM OF ARTURO AGUAYO, Claimant, v. CHATWOOD MANAGEMENT/ALPHA VILLAGE ON THE GREEN APARTMENTS, Employer, and HARTFORD CASUALTY COMPANY, Insurer, Respondents.

W.C. No. 4-404-804Industrial Claim Appeals Office.
December 15, 2000

FINAL ORDER
The respondents seek review of an Amended Supplemental Order of Administrative Law Judge Hopf (ALJ) dated September 2, 2000, which determined the claimant proved he suffered a compensable injury and required the respondents to pay medical benefits. The respondents contend the ALJ erroneously found the injury arose out of the claimant’s employment. We disagree and, therefore, affirm.

On December 24, 1998, the claimant was employed by the respondent-employer as a leasing agent and Spanish language translator for an apartment complex where he resided. After work on December 24 the claimant injured his low back when he slipped and fell on an icy sidewalk while walking from the employer’s leasing office to his car which was located in a parking lot at the apartment complex.

In an order dated June 15, 1999, the ALJ found the parking lot was owned and maintained by Chatwood for use by the tenants. The ALJ also found the claimant’s employment required him to work in the employer’s leasing office and throughout the apartment complex. Consequently, the ALJ determined the employer’s premises included the parking lot, and that the claimant was on the employer’s premises at the time of the injury. The ALJ also found the claimant sustained his burden to prove a compensable injury. However, the ALJ’s order did not award or deny any benefits.

The respondents appealed the ALJ’s June 1999 order. On January 18, 2000, we concluded the ALJ’s order was not a final order within the meaning of § 8-43-301(2), C.R.S. 2000. Therefore, we dismissed the appeal without prejudice.

On June 26, 2000, the ALJ entered a order entitled “Supplemental Order” which required the respondents to pay “reasonable and necessary medical benefits. The respondents timely appealed the Supplemental Order and alleged the ALJ erroneously found a compensable injury.

Thereafter, the parties filed a stipulated motion for the entry of an Amended Supplemental Order that required the respondents to pay medical benefits in an amount certain in order to perfect the respondents’ appeal. Consequently, the ALJ entered the order on review which required the respondents to pay medical benefits of $5000.

The record does not contain a petition to review the “Amended Supplemental Order” as required by § 8-43-301(2). However, the Amended Supplemental order did not address any of the arguments raised in the respondents’ petition to review the “Supplemental Order.” Under these circumstances, we conclude the Amended Supplemental Order is properly before us on review. See Michalski v. Industrial Claim Appeals Office, 757 P.2d 1146 (Colo.App. 1988).

The respondents do not dispute the ALJ’s finding the injury occurred “in the course and scope” of employment. However, they contend the claimant failed to prove the injury “arose out of” the employment. Specifically, the respondents contend evidence the claimant was on the employer’s property at the time of the injury does not support a finding the injury “arose out of” the employment. The respondents also renew their contention the injury falls within the “going to and coming from work” rule of compensability. We reject these arguments.

Only injuries which arise out of and in the course of employment are compensable. Section 8-41-301(1)(b), C.R.S. 2000. The “in the course of” test refers to the time, place and circumstances of the injury. See Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991). The “time” limits of the employment embrace a reasonable interval after official working hours when the employee is on the employer’s property. Larson’s Workers’ Compensation Law § 21. 06(1); Industrial Commission v. Hayden Coal Co., 113 Colo. 62, 155 P.2d 158 (1944).

The “arising out of” test is one of causation and requires that the injury have its origin in an employee’s work-related functions and be sufficiently related thereto so as to be considered part of the employee’s service to the employer. In order for an injury to arise out of employment, there is no requirement that the activity be a strict duty or obligation of employment, nor is there any requirement that the employer enjoy a specific benefit from the activity. 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 or “optional” activities on the part of the employee which are devoid of any duty component and unrelated to any specific benefit to the employer. L.E.L. Construction v. Goode, 849 P.2d 876 (Colo.App. 1992), rev’d on other grounds, 867 P.2d 875 (Colo. 1994) (claimant sustained fatal compensable injuries while traveling between the job site and the employer’s main office to pick up a paycheck).

Ultimately, 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).

Because the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1999. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible the inferences she drew from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).

Here, the ALJ correctly recognized that 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. 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). Instead, the hazards of the employer’s premises become the hazards of the employment.

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). As the ALJ recognized, the courts have treated injuries sustained while an employee is leaving work and walking through the employer’s parking lot to “arise 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).

There is substantial evidence to support the ALJ’s finding that the employer’s premises included the parking lot where the claimant was injured and, therefore, the ALJ’s finding that the claimant was on the employer’s premises at the time of the injury is binding on review. It follows the ALJ properly rejected the respondents’ contention that the claim is governed by the “going to and coming from work” rule of compensability.

At the time of the injury the claimant had left the leasing office. He stated that the route he took to his car was one of the paths he used to get to his apartment at the complex. (Tr. p. 30). Thus, it is immaterial whether the claimant was walking to his car or walking to his apartment at the time of the injury. Rather, the ALJ could reasonably infer that the claimant’s employment duties inherently included the act of a leaving the job site. Moreover, the ALJ’s findings support the conclusion the injury arose out of the employment.

The respondents’ remaining arguments have been considered and are not persuasive.

IT IS THEREFORE ORDERED that the ALJ’s order dated June 15, 1999, 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. 2000. 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 December 15, 2000 to the following parties:

Arturo Aguayo, 1869 Coronado Parkway #308, Thornton, CO 80229

Arturo Aguayo, 5781 Emerson St., Denver, CO 80216

Chatwood Management/Alpha Village on the Green Apts., 2942 Evergreen Parkway, #302, Evergreen, CO 80439

Hartford Casualty Company, Attn: Mary Ann Donalson, 7670 s. Chester St. Suite 30, Englewood, CO 80112

Hartford Casualty Company, P. O. Box 5188, Denver, CO 80217-9819

Amado L. Cruz, Esq., 2055 S. Oneida St., #260, Denver, CO 80224 (For Claimant)

Bradley R. Unkeless, Esq., 7670 S. Chester St., #300, Englewood, CO 80112 (For Respondents)

BY: A. Pendroy