W.C. No. 4-216-778Industrial Claim Appeals Office.
September 29, 1995
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ) which denied her claim for workers’ compensation benefits. We affirm.
The ALJ found that the claimant sustained injuries in an automobile accident while driving to a luncheon on April 19, 1993. The issue in this case is whether the claimant’s travel to the lunch arose out of and in the course of her employment.
The ALJ credited the testimony of the respondents’ witness, Ms. Bray, who was the claimant’s supervisor at the time of the injury. Bray testified that for the month of March employees in the claimant’s unit exceeded productivity expectations. Consequently, Bray decided that the employees would be allowed to take off on the afternoon of April 19. However, the employees decided to hold a luncheon in celebration of their accomplishment. (Tr. pp. 12, 100).
Bray also testified that the respondent-employer did not pay for the lunch, though she paid for the luncheon out of her own pocket. (Tr. pp. 27, 97-98). Bray further testified that business was not discussed at the luncheon. (Tr. p. 98). Under these circumstances, the ALJ concluded that there was not a sufficient “nexus” between the luncheon and the claimant’s employment, and that no special circumstances existed which would bring the lunch within the scope of the claimant’s employment. Therefore, the ALJ denied the claim.
On review, the claimant’s central argument is that the ALJ’s order is not supported by substantial evidence in the record. Specifically, the claimant argues that Bray’s testimony was incredible as a matter of law because the claimant and a co-employee were not given the afternoon off, but were charged with sick leave and leave without pay respectively. The claimant asserts from this evidence that employees were compelled to attend the luncheon or perform their usual duties. The claimant also relies on evidence that she was given an invitation to the luncheon, and that the invitation indicated the lunch would be “complimentary.” We are not persuaded by the claimant’s arguments.
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 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. 1992); rev’d on other grounds, 867 P.2d 875 (Colo. 1994).
Injuries sustained during off premises lunch-time 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 lunch-time 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); Berry’s 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).
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. (1995 Cum. Supp.). In applying this rule, we must defer to the ALJ’s resolution of conflicts in the evidence, as well as her credibility determinations. Monfort, Inc. v. Rangel, 867 P.2d 122
(Colo.App. 1993). Moreover, testimony may not be found incredible as a matter of law unless overwhelmingly rebutted by hard certain evidence directly contrary to the testimony so that an ALJ would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571
(Colo. 1986). Further, we may not substitute our judgement for that of the ALJ based upon the number of witnesses appearing for or against a particular proposition. See Jachetta v. Milano, 147 Colo. 100, 362 P.2d 1065
(1961).
The claimant’s arguments notwithstanding, we do not find Ms. Bray’s testimony to be incredible as a matter of law. Bray testified that she gave the claimant and her co-employee sick leave and leave without pay because they desired these classifications in order to pursue insurance claims arising out of the automobile accident. While there was conflicting testimony, and the ALJ certainly could have drawn contrary inferences, we cannot say that Bray’s testimony was “overwhelmingly” contradicted or rebutted in this regard.
Moreover, we do not believe the fact that the claimant received the printed invitation necessitates a different result. In fact, Bray’s secretary testified that she generated the invitation of her own accord. (Tr. p. 119). The secretary’s statements support Bray’s testimony that the luncheon was generated by the employees themselves, and not the compulsion of the employer.
It is true, as the claimant argues, that some of the employees testified in a manner which supports the claimant’s position. However, our review of the record indicates that some of the testimony also favored the employer. (Eg. Tr. p. 123, employee did not think lunch was mandatory but was a “fun outing”). We decline to interfere in the ALJ’s assessment of this conflicting evidence.
Moreover, the evidence which the ALJ found persuasive indicates that the luncheon was the idea of the employees, was not financed by the employer, and that employees were not compelled to attend. These findings support the determination that the claim is not compensable. Cf. Dynalectron Corp. v. Industrial Commission, 660 P.2d 915 (Colo.App. 1982). 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).
IT IS THEREFORE ORDERED that the ALJ’s order, dated November 14, 1994, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed September 29, 1995 to the following parties:
Susan Banks, 1833 Lorraine St., Colorado Springs, CO 80906
Colorado State University Extension, Attn: Colleen Bray, 301 S. Union, Colorado Springs, CO 80910
Colorado Compensation Insurance Authority, Attn: M. J. Steiner, Esq. (Interagency Mail)
Edward J. LaBarre, Esq., 105 E. Vermijo, Ste. 600, Colorado Springs, CO 80903 (For the Claimant)
By: ______________________________