W.C. No. 4-605-086.Industrial Claim Appeals Office.
March 21, 2005.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied and dismissed the claim for compensation. The claimant alleges, inter alia, that the ALJ’s findings are insufficient to support appellate review of the theory that the injury is compensble because it occurred during “dual purpose” travel to the claimant’s home. We set the order aside and remand for entry of a new order.
The claimant testified that she was employed by respondent Kelly Services (Kelly) to provide home health care services to a quadriplegic client. The claimant worked a split shift from 8:00 a.m. to 3:00 p.m., and from 9 p.m. to 11 p.m., seven days per week. The claimant commuted to the patient’s house by bus.
The claimant described her work with the client as very “intense,” stating that it required nearly constant activity from the time she arrived until she departed. The claimant assisted the client with hygiene and transferred him from place to place and activity to activity. The client also liked to talk with the claimant.
The claimant testified that Kelly required her to keep detailed records of her activities for purposes of billing the client’s insurance company. The claimant was required to note the client’s vital signs and the various services she performed. These items were condensed in a report and submitted to Kelly. The claimant stated that because the job was so “hectic” it was “hard to actually have the time — the allotted amount of time to sit down and do the paperwork.” Consequently, the claimant began taking the paperwork home with her, and spent approximately 40 minutes per day completing it. The claimant admitted that Kelly did not have a policy which required her to take the paperwork home with her, and stated that it was her “choice” to do so. (Tr. pp. 26, 29).
The claimant was not compensated for traveling to and from work. Neither was she paid for doing the paperwork at home.
On December 29, 2003, the claimant completed her first shift and was walking to the bus stop to go home. She was carrying paperwork which she intended to complete when she got home. The claimant tripped and injured her knee.
The ALJ denied the claim for compensation. Citing the four-part test established by Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999), the ALJ found the injury did not “occur on the premises of the employer or the premises of the client,” and did not occur during working hours. The ALJ further concluded the claimant was not performing an activity “contemplated by the employment contract.” In support of this determination the ALJ found the claimant was not compensated for travel time nor provided a vehicle for travel. Finally, the ALJ found the employment did not create a special zone of danger.
On review, the claimant contends the ALJ failed to make adequate findings of fact to permit appellate review of her contention that at the time of the injury the claimant’s travel had a “dual purpose.” Specifically, the claimant alleges that the circumstances of the employment required her to perform the paperwork at home. Therefore, the claimant reasons that while transporting the paperwork home she was acting, at least in part, for the benefit of the employer. Because we conclude the findings are insufficient to support appellate review of the claimant’s contention, and because the ALJ may have improperly applied the law we remand for entry of a new order. Section 8-43-301(8), C.R.S. 2004.
To be compensable, an injury must result from the performance of service arising out of and in the course of the claimant’s employment. Section 8-41-301(1)(b), C.R.S. 2004.
Injuries sustained while going to and from work generally are not considered to arise out of and in the course of employment. Madden v. Mountain West Fabricators, supra.
Under the “dual purpose doctrine,” an injury sustained while performing an act for the mutual benefit of the employer and the employee arises out of and in the course of employment. Berry’s Coffee Shop v. Palomba, 161 Colo. 369, 423 P.2d 2 (1967); Deterts v. Times Publishing Co., 38 Colo. App. 48, 552 P.2d 1033 (1976). Whether a particular activity confers a benefit on the employer so as to bring it within the dual purpose doctrine is ordinarily a question of fact for determination by the ALJ. Dunavin v. Monarch Recreation Corp., 812 P.2d 719 (Colo.App. 1991).
Although the Madden decision does not expressly discuss the “dual purpose doctrine” it does note that travel which is at the express or implied request of the employer, and which confers a benefit on the employer beyond the claimant’s mere arrival at work, may be compensable because such travel is “contemplated by the employment contract.”977 P.2d at 864-865. For instance, the Court of Appeals held that where an employer required the claimant to travel between the homes of several patients an injury sustained during the travel is compensable. This is true event though the travel was not compensated or reimbursed by the employer. Benson v. Colorado Compensation Insurance Authority, 870 P.2d 624
(Colo.App. 1994).
In certain factual situations the dual purpose doctrine has been applied to cover injuries sustained while the claimant is traveling between home and the job site. One such instance exists when the nature of the claimant’s employment is such that “it can genuinely and not fictitiously be said that the home has become part of the employment premises.” In those circumstances “travel between two parts of the employer’s premises is in the course of employment.” 1 Larson’s Workers’ Compensation Law, § 16.10[1]. Larson adds the following at § 16.10[2]:
When reliance is placed upon the status of the home as a place of employment generally, instead of or in addition to the existence of a specific work assignment at the end of the particular homeward trip, three principal indicia may be looked for: the quantity and regularity of work performed at home; the continuing presence of work equipment at home; and special circumstances of the particular employment that make it necessary and not merely personally convenient to work at home.
Here, the claimant testified to facts which, if credited, could support an inference that the demands of her job rendered work at home a regular and necessary element of her employment. Viewed in a light most favorable to the claimant, the evidence would support a finding that the claimant was required to work at home on a daily basis because there was not sufficient time to complete the unusual amount of paperwork mandated by the employer’s billing procedure. In such circumstances, the transportation of the paperwork between the client’s premises and the claimant’s home could fall within the dual purpose doctrine.
Conversely, there is evidence from which it could be inferred that the claimant was not actually so busy at work that filling out the paperwork at home was a necessary requirement of the job rather than a mere convenience. For instance, the claimant admitted that she recorded the claimant’s vital signs while at work, and stated she did paperwork at home as a “volunteer.” (Tr. pp. 25-29).
The ALJ found that the claimant “often took paperwork home,” and in this job was required to complete “more paperwork than the typical client.” These findings are not sufficient to address the critical question of whether the claimant’s travel home arose out of and in the course of employment under the dual purpose doctrine. On remand, the ALJ should determine whether the duties of the claimant’s job were such that her home became a second place of employment under the test described above, or whether the claimant’s transportation of the paperwork was merely a convenience to the claimant.
The claimant’s assertions notwithstanding, we do not consider the issue to be one of law on the record presented. We hold the claimant’s testimony is subject to varying inferences with respect to the issue discussed above. Further, the ALJ is free to credit portions of the claimant’s testimony while discrediting other portions, even if the testimony may be viewed uncontroverted by other evidence. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993); Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993). On remand the ALJ is free to reconsider the evidence in light of the principles discussed herein, and may enter new findings of fact and conclusions of law. The new order shall be based on the existing record and another hearing is not authorized by this order.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 8, 2004, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Christine Berger, Westminster, CO, Kelly Services, Inc., Albuquerque, NM, American Casualty Company of Reading, Pennsylvania, c/o CNA Insurance Co., Littleton, CO, William J. Macdonald, Esq., Denver, CO, (For Claimant).
John M. Lebsack, Esq., Denver, CO, (For Respondents).