W.C. No. 4-370-167Industrial Claim Appeals Office.
May 17, 1999.
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Friend (ALJ) which denied the claim for workers’ compensation benefits. The claimant contends the evidence compels the conclusion that, although he deviated from the course of his employment, the deviation had ended at the time of the injury. We affirm.
The ALJ found that the employer required the claimant to travel from his home in Greeley, Colorado, to a remodeling jobsite in Steamboat Springs, Colorado. Because the job required the claimant and his coworkers to remain overnight, the employer provided two motel rooms.
While working on July 29, 1997, the claimant became acquainted with Dallas Sims, an employee of another subcontractor. The ALJ found that the claimant agreed with Sims to “go out on the town” after work. Further, the claimant arranged with his coworkers to have sole occupancy of one of the motel rooms in case the claimant “got lucky.” Between 7 p.m. and 8 p.m., the claimant and Sims drove up to the motel and offered a coworker some beer. The coworker noted that the claimant was having difficulty driving his vehicle and appeared to be intoxicated. The claimant then departed with Sims.
Later that evening, the claimant parked his vehicle at Sims’ cabin, which is located three to four miles northwest of Steamboat. The claimant and Sims then left the cabin and began driving around in a truck. The claimant testified that Sims drove into the mountains so the claimant could see the lights of Steamboat.
At approximately 12:20 a.m. on July 30, 1997, the claimant and Sims stopped at a 7-11 where they attempted to buy beer, but they were unsuccessful because of the late hour. They then proceeded north away from town and the claimant’s motel, but in the general direction of Sims’ cabin. The claimant testified that he intended to return to the cabin, pick up his car, and drive back to the motel. (Tr. pp. 15). However, Sims rolled the truck and the claimant was seriously injured.
The ALJ concluded that, although the claimant was in “travel status,” he departed from the course of his employment on a personal errand, and the errand had not ended at the time of the injury. The ALJ found that at the time of the accident, the claimant was heading back to the cabin to get his car and return to the motel. However, the ALJ was unpersuaded that this fact established an end to the deviation because the claimant was headed away from the motel, and had just attempted to purchase additional beer.
On review, the claimant contends the evidence establishes as a matter of law that the personal deviation had ended at the time of the injury. Relying on Pat’s Power Tongs, Inc., v. Miller, 172 Colo. 541, 474 P.2d 613 (1970), and Continental Airlines v. Industrial Commission, 709 P.2d 953 (Colo.App. 1985), the claimant argues that he returned to the scope of his employment as soon as he finished looking at the lights and began the trip back to the cabin to pick up his car. We are not persuaded.
An employee required to travel away from the employer’s premises is considered to be in travel status, and is covered for workers’ compensation during the entire trip, including necessary ministrations such as eating and sleeping. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995). However, an exception to this rule exists where the employee engages in a personal errand unrelated to the employer’s business and other matters incident to the travel. For instance, a traveling employee may step outside the scope of employment to engage in recreational activities. Silver Engineering Works, Inc. v. Simmons, 180 Colo. 309, 505 P.2d 966 (1973).
However, our courts have held that a personal errand ends and the claimant returns to the scope of employment the “moment he commences his return to his home or to his lodging.” Pat’s Power Tongs, Inc. v. Miller, supra. In Miller, the traveling claimants engaged in a personal deviation by taking friends to dinner. After dinner, the claimants returned the friends to their home and were injured while driving back to the motel. The court concluded that the claimants’ injuries were compensable because they were “proceeding toward their lodging quarters for the night” at the time of the injury. See also, Mohawk Rubber Co. v. Cribbs, 165 Colo. 526, 440 P.2d 785 (1968) (evidence supported inference that deviation had ended where decedent was killed in a car accident while driving ten blocks from his home and on his ususal route home); Continental Airlines v. Industrial Commission, supra
(deviation for shopping trip had ended where claimant fell while leaving the store, but was on her way back to hotel).
The question of when a personal deviation has ended and the claimant has commenced the return to his home or lodging is generally one of fact for determination by the ALJ. Further, the claimant bears the burden of proof on this issue. Wild West Radio, Inc. v. Industrial Claim Appeals Office, 905 P.2d 6
(Colo.App. 1995). Because the issue is factual, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1998.
In applying substantial evidence test, we must defer to the ALJ’s resolution conflicts in the evidence, his credibility determinations, and the plausible inferences he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995). A question of fact exists concerning whether or not a deviation ended if honest persons, fairly considering the evidence, could arrive at contrary conclusions. See Rand v. Industrial Commission, 110 Colo. 240, 132 P.2d 784 (1942).
The claimant’s arguments notwithstanding, the ALJ was not compelled to conclude that the claimant’s personal deviation from the scope of employment had ended at the time of the accident. Although the claimant argues the deviation was confined to a sightseeing trip, the ALJ clearly found to the contrary. Specifically, the ALJ determined that the claimant arranged for a “night on the town” which involved substantial amounts of drinking and driving. Further, the ALJ determined that deviation lasted for many hours after the claimant completed work.
Considering the breadth of the deviation, the ALJ was not required to find that it was over simply because the claimant was in the process of heading to the cabin to retrieve his car. As the ALJ found, at the time the accident, the claimant was not proceeding directly to his place of lodging, but was headed away from it. Moreover, the ALJ resolved conflicts in the evidence to find that shortly before the accident, the claimant and Sims attempted to purchase additional beer. The ALJ could logically infer from this evidence that, although the claimant was contemplating the end of the deviation, the deviation was not over at the time of the injury.
Moreover, this conclusion does not require us to “overrule” such cases as Pat’s Power Tongs, Inc. v. Miller, supra, an Continental Airlines v. Industrial Commission, supra. In those cases, the evidence established that the injury occurred while the claimant was on a direct path to the home or lodging after completing the deviation. Here, the ALJ did not find the claimant was on a direct path to the motel. Consequently, the cases cited by the claimant are not dispositive of the factual issue presented here.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 8, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed May 17, 1999 to the following parties:
Nathan Bunn, 3813 W. 12th St., Greeley, CO 80634
Woody’s Paint and Remodeling, 530 12th St., Greeley, CO 80634, Attn: Ralph Riggs, Jr.
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority Interagency Mail (For Respondents)
Robert W. Turner, Esq., 1120 Lincoln St., #1001, Denver, CO 80203 (For Claimant)
Glen B. Goldman, Esq., 999 18th St., #3100, Denver, CO 80202
By: le