W.C. No. 4-221-077Industrial Claim Appeals Office.
October 25, 1995
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gandy (ALJ) which determined that the claimant’s injury during a motor vehicle accident on the way to work, arose out of and in the course of employment, and therefore, awarded medical benefits. We affirm.
An injury arises out of and in the course of employment when there is a sufficient “nexus” between the circumstances under which the claimant usually performs the employment and the activity which caused the injury, so that the activity may be considered an incident of the employment. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). As stated by the respondents, the general rule is that injuries sustained while traveling to work fall within the “going to and coming from rule,” and are not compensable. Berry’s Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2 (1967); Perry v. Crawford Co., 677 P.2d 416 (Colo.App. 1983). However, exceptions exist where “special circumstances” demonstrate a nexus between the travel and the circumstances of the employment. Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo. App. 92, 554 P.2d 705
(1976). Such special circumstances have been found where the travel was at the implied or express direction of the employer and the employer receives some special benefit from the travel beyond the claimant’s arrival to work National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 1259 (Colo.App. 1992); Monolith Portland Cement v. Burak, 772 P.2d 688 (Colo.App. 1989).
The respondents are correct in stating that a “nexus” between an accident and the employment is not established by the mere fact that the employer furnished the means of transportation. Varsity Contractors v. Baca, 709 P.2d 55 (Colo.App. 1985). Rather, the totality of circumstances must be examined to determine whether there is a sufficient nexus between the employment and the travel to bring the injury within the course and scope of the employment. Carlile Corp. v. Antaki, 162 Colo. 376, 426 P.2d 549 (1967).
Here, the ALJ found that the claimant was injured while driving the employer’s vehicle to the employer’s premises. From conflicting evidence, the ALJ found that the claimant regularly drove the employer’s vehicle to and from work for various reasons, including the fact that the employer’s premises presented a high risk of vandalism and the claimant’s home was safer. The ALJ also found that on some occasions the claimant was on call and used the vehicle to perform duties for the employer including having the vehicle serviced. Based upon these facts, the ALJ concluded that the claimant’s injury arose out of and in the course of his employment.
The respondents contend that the ALJ’s findings of fact are not supported by substantial evidence in the record. In support, the respondents cite the claimant’s testimony that he was not “on call” the night before the accident, he was not servicing the vehicle and he had asked to take the vehicle home for personal reasons. We perceive no error.
Substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985). Application of the substantial evidence test requires that we defer to the ALJ’s credibility determinations, his resolution of conflicts in the evidence, and his assessment of the sufficiency and probative weight of the evidence. May D F v. Industrial Claim Appeals Office, 752 P.2d 589
(Colo.App. 1988).
Here, the claimant testified that his use of the vehicle on the day of the accident was “both for personal reasons and for the company’s benefit.” Transcript 24. The ALJ found the claimant’s testimony credible and persuasive, and the ALJ could reasonably conclude from this testimony that the employer derived a sufficient benefit from the claimant’s usage of the vehicle on this occasion so as to render the accident compensable. Insofar as the claimant’s testimony contained inconsistencies, it was the ALJ’s sole prerogative to resolve the inconsistencies and credit that part of the claimant’s testimony which he found most persuasive. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21 (1968) see also Cary v. Chevron U.S.A., Inc. 867 P.2d 117 (Colo.App. 1993). Further, although the claimant’s testimony conflicted with the testimony of the employer’s witness in some respects, the ALJ expressly resolved the conflicts in favor of the claimant. Thus, we perceive no error in the ALJ’s determination that there is a sufficient nexus between the accident and the conditions of the claimant’s employment to bring the claimant’s injuries within the course and scope of his employment. See § 8-43-301(8), C.R.S. (1995 Cum. Supp.)
IT IS THEREFORE ORDERED that the ALJ’s order dated February 22, 1995, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed October 25, 1995 to the following parties:
Randall E. Busch, 1780 Pecos Way, Denver, CO 80221
HOMEDCO, 1649 Main Street, Longmont, CO 80501
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq., (Interagency Mail)
State Farm Ins. Co., Attn: Bobbie Patton, Claim Rep., 7625 W. 92nd Ave., Westminster, CO 80021-9956
John G. Taussig, Jr., Esq., 1919 14th St., Ste. 805, Boulder, CO 80302 (For the Claimant)
Cindy Slevin, Esq., 999 19th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
BY: _______________________