W.C. No. 4-510-146Industrial Claim Appeals Office.
July 16, 2002
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) which determined the claimant suffered compensable injuries. The respondents contend the evidence does not support the ALJ’s finding that the claimant’s injuries, sustained in a parking lot accident, arose out of and in the course of employment. We affirm.
The employer owned and maintained a parking lot immediately adjacent to its retail store. On July 21, 2001, the claimant, employed in the fabric department of the store, “clocked out” on her lunch period. The claimant walked out of the store and was struck by a vehicle in the parking lot. Although not expressly found by the ALJ, the claimant admitted that she intended to walk to a nearby restaurant and eat lunch. The restaurant was off the employer’s premises.
The ALJ concluded that because the injury occurred on the employer’s premises, during a “reasonable interval between official working hours,” and while the claimant was performing an activity “reasonably incidental” to employment, the claimant’s injuries arose out of and in the course of her employment. Consequently, the ALJ awarded medical benefits for treatment of the claimant’s injuries.
On review, the respondents contend the record does not contain substantial evidence to support the ALJ’s legal conclusions that the injury arose out of and in the course of the claimant’s employment. We disagree.
The claimant must prove she sustained an injury while “performing service arising out of and in the course of employment.” Section 8-41-301(1)(b), C.R.S. 2001. An injury happens in the “course of” employment if it occurs within the time and place limits of the employment, and during an activity having some connection with the employee’s job functions. The “arising out of” element is narrower and requires the claimant prove the injury has its “origin in an employee’s work-related functions and is sufficiently related thereto to be considered part of the employee’s service to the employer.” Popovich v. Irlando, 811 P.2d 379, 383 (Colo. 1991).
I.
We first consider the respondents’ contention the injury did not occur “in the course of” the claimant’s employment. The respondents reason that because the claimant was not performing acts “preparatory to employment,” was “off the clock,” and chose to leave the employer’s premises where she could have eaten lunch, the accident did not occur in the course of employment. We conclude substantial evidence supports the ALJ’s order. Section 8-43-301(8), C.R.S. 2001.
Although injuries incurred while traveling to and from work do not occur in the course of employment, case law establishes, “with a surprising degree of unanimity,” that for an employee having fixed hours and place of work “going to and from work is covered only on the employer’s premises.” 1 Larson’s Workers’ Compensation Law, § 13.01[1]. This principle has been extended to injuries which occur on the employer’s premises during an unpaid lunch break, even if the employee is not required to remain on the premises for lunch. The rationale for this conclusion is that “if going to and from work on the premises is covered, then going to and from lunch on the premises must be covered” because the “eating of lunch is no more removed from the employment than traveling to it.” 2 Larson’s Workers’ Compensation Law, § 21.02[1][a] .
We conclude these principles are the law of Colorado. Parking lots available for use by employees are considered the employer’s premises, even if they are not owned and controlled by the employer. See Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo. App. 92, 554 P.2d 705
(1976); Harrell v. Sam’s Wholesale Club, W.C. No. 4-443-255 (April 10, 2001), aff’d. Sam’s Wholesale Club v. Industrial Claim Appeals Office,
(Colo.App. No. 01CA0778, November 23, 2001) (not selected for publication). Here, the evidence fully supports that the ALJ’s finding the injury occurred on the employer’s premises; therefore, the evidence supports the conclusion the injury occurred within the place limits of the employment.
Contrary to the respondents’ further arguments, there are no requirements that the claimant be “on the clock” when the injury occurs, and that the claimant be performing an act “preparatory to employment.” The following language from Ventura v. Albertson’s Inc., 856 P.2d 35, 38
(Colo.App. 1992), is pertinent:
The employee, however, need not be engaged in the actual performance of work at the time of injury in order for the “course of employment” requirement to be satisfied. [citation omitted]. Injuries sustained by an employee while taking a break, or while leaving the premises, collecting pay, or in retrieving work clothes, tools, or work materials within a reasonable time after termination of a work shift are within the course of employment, since these are normal incidents of the employment relation. [citation omitted]. (Emphasis added).
Here, the ALJ determined the injury occurred immediately after the claimant clocked out to take her lunch break. Because the employer did not require the claimant to remain on the premises to eat lunch, and because it maintained a parking lot immediately adjacent to the store, the ALJ reasonably concluded that the claimant’s walk across the parking lot to get lunch occurred during a reasonable interval between working hours and was incident to the employment. As pointed out by Larson, the fact the claimant was leaving the premises on her lunch break rather than arriving before work makes no difference to the underlying analysis. There is no requirement that the claimant be engaged in a “preparatory activity” if the claimant is leaving the employer’s premises incident to her employment. Ventura v. Albertson’s Inc., supra. Again, the ALJ’s pertinent factual findings are supported by the record and justify his legal conclusion that the claimant was in the course of her employment when the injury occurred.
II.
The respondents next contend the claimant’s injury did not arise out of her employment because it did not have any connection to her work-related functions in the employer’s fabric department. Instead, the respondents assert the claimant’s injury should be analogized to one occurring while an employee is on the way to work. We are not persuaded.
In order for an injury to arise out of employment it is not necessary for the employee to be performing work duties when the injury occurs. 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, 12 (Colo.App. 1995); see also, University of Denver v. Nemeth, 127 Colo. 385, 257 P.2d 423, 429 (1953) (claimant need not be performing work at time of injury if claimant is on the employer’s premises occupying himself in a manner pertaining to or incidental to employment).
The question of whether there is a “nexus” or sufficient causal relationship between the employment and the injury is one of fact to be determined based on the totality of the circumstances. In re Question Submitted by United States Court of Appeals, 759 P.2d 17, 20 (Colo. 1988). Consequently, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8).
The ALJ found the parking lot was owned by the employer. The employer did not require employees, such as the claimant, to remain on the premises for lunch. Consequently, it was foreseeable that employees would walk across the parking lot during their lunch breaks. Under these circumstances, the ALJ plausibly found the claimant’s presence in the parking lot was incident to the circumstances under which her work was performed, and, therefore, arose out of the employment. Because the claimant’s injury occurred on the employer’s premises during an activity incident to her employment, this case is distinguishable from Perry v. Crawford Co., 677 P.2d 416 (Colo.App. 1983). The respondents’ remaining arguments are without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated January 16, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ 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, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2001. 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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed July 16, 2002 to the following parties:
Sandra G. Broyles, 8221 Penn Way, Denver, CO 80229
Wal-Mart Stores, Inc., 550 E. 102nd Ave., Thornton, CO 80229-2014
American Home Assurance Company, 175 Water St., 18th Floor, New York, N.Y. 10038
Leanne Gavallas, Claims Management, Inc., P. O. Box 1288, Bentonville, AR 72712-1288
Richard A. Bovarnick, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400,
Denver, CO 80227 (For Respondents)
By: A. Hurtado