W.C. No. 4-441-283Industrial Claim Appeals Office.
May 15, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which determined the claimant suffered a compensable injury and awarded workers’ compensation benefits. We affirm.
The claimant is employed as a cocktail waitress. The claimant sustained injuries during an authorized break. The claimant testified and the ALJ found that on February 24, 2000, at approximately 11:15 a.m., the claimant went out the back door of the employer’s premises, towards a church across the alley from the employer’s premises with the intent of joining her co-workers for a cigarette break. The claimant was thrown to the ground and suffered injuries to her right ankle, right knee and right wrist as she stepped over a cable while it was being tightened. The ALJ found the claimant normally took a break no longer than 5 to 6 minutes and did not did not clock out prior to the break. The ALJ further found the employer exercised control over the break because the employer required employees to stay close enough to be called back to work at any time. Under these circumstances, the ALJ determined the claimant’s injuries arose out of and in the course of employment. In so doing the ALJ expressly relied on Roache v. Industrial Commission, 729 P.2d 991 (Colo.App. 1986).
On review the respondents contend the ALJ erred as a matter of law in finding the injuries “arose of” and “in the course of ” the employment. The respondents argue that evidence the employer retained control over the claimant is insufficient to support the ALJ’s finding that the claimant’s off premises injuries during a smoking break are compensable. The respondents’ arguments notwithstanding, we agree with the ALJ that Roache v. Industrial Commission, supra, is dispositive of the pertinent legal issues.
The claimant in Roache suffered injuries during a 15 minute paid break while getting something to eat at a convenience store across the street from the employer’s premises. The sole issue before the court was whether the injuries arose out of and in the course of employment. Specifically, the issue was whether the activity giving rise to the injuries “constituted a deviation from employment so substantial as to remove it from the employment relationship.” The court concluded that the resolution of the issue was dependent on 1) whether the break period was of a duration so short as to support the inference that employment activities were virtually uninterrupted; 2) whether the break was provided for by the employment contract; 3) whether the break occurred during a paid interval; 4) whether the employer permitted off-premises breaks; 5) whether the off-premises location was in close proximity to the employment site; and 6) whether there were limitations on the where the employees were allowed to go during the break. Based upon consideration of these factors, the Roache court concluded the claimant was not removed from the employment relationship at the time of the injuries. In reaching this conclusion the court relied on evidence employees were expressly permitted to go to the convenience store, the break was of a short duration, the injuries occurred during a paid interval and the convenience store was located not far from the employer’s premises. Under these circumstances, the court concluded the activity which gave rise to the injuries did not constitute a “deviation from employment so substantial as to remove it from the employment relationship.” Id. at 992; cf. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999) (discussion factors relevant to compensation of off premises injuries).
The facts presented here are not significantly distinguishable from the facts in Roache. Furthermore, the respondents do not dispute that immediately preceding the break the claimant’s activities were causally related to and in the course of the employment. Therefore, the ALJ did not err in finding the injuries arose out of and in the course of the employment.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 8, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 2000. 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, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 15, 2001 to the following parties:
Stella Bustos, 202 Locust Dr., Colorado Springs, CO 80907
The El Paso Club, 30 E. Platte Ave., Colorado Springs, CO 80902-1221
Curt Kriksciun, Esq., Pinnacol Assurance — Interagency Mail (For Respondents)
James M. Anderson, Esq., 4905 N. Union Blvd., #302, Colorado Springs, CO 80918 (For Claimant)
Dave Smith, Esq., 600 17th St., #1600N, Denver, CO 80202
BY: A. Pendroy