W.C. No. 4-718-656.Industrial Claim Appeals Office.
January 31, 2008.
ORDER OF REMAND
The claimant seeks review of a corrected order of Administrative Law Judge Connick (ALJ) dated September 17, 2007, that found the claimant had failed to prove that he sustained an injury arising out of and in the course of his employment. We reverse and remand for a determination of the benefits and compensation payable to the claimant.
The claimant worked as a plasterer under his brother who was the foreman of the crew. The employer allowed each crew to decide how it wished to receive its paychecks. The employer would mail the paychecks or direct deposit them, or crews could pick up the paychecks from the employer’s home office in Windsor. The typical way that the claimant’s crew obtained its paychecks was for the foreman to drive to Windsor and pick up the checks for the entire crew. The employer was aware of this practice of the claimant’s crew and authorized and condoned this method of paying the members of the claimant’s crew. On March 2, 2007 when the paychecks were ready, a co-owner of the employer telephoned the foreman that the paychecks were ready. The co-owner knew that the foreman would drive from Denver to pick up the paychecks. On March 2, 2007, the claimant drove his truck from Denver to Windsor with the foreman as a passenger so the foreman could pick up the paychecks for the crew, who were working in Denver. While driving his truck in Windsor the claimant lost control of his truck, veered off the road and was seriously injured. On conflicting testimony, the ALJ found that the claimant was not working for the employer on March 2, 2007, that the accident did not occur during working hours, and that the claimant was not paid as he drove his foreman to or from Windsor. The ALJ further found that the claimant failed to establish that the foreman ordered him as his boss to drive him to Windsor. The ALJ concluded that the
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claimant failed to prove that he sustained an injury arising out of and in the course of his employment.
On appeal, the claimant argues that the ALJ erred in concluding that the claimant failed to prove that he sustained an injury arising out of and in the course of his employment. We agree.
In L.E.L. Construction v. Goode, 849 P.2d 876 (Colo.App. 1992), rev’d on other grounds, 867 P.2d 875 (Colo. 1994) the court, citing Alpine Roofing Co. v. Dalton, 36 Colo.App. 315, 539 P.2d 487 (1975), noted that injuries incurred by an employee while collecting pay are generally considered to be compensable because they are an incident of employment. In Alpine Roofing Company v. Dalton, an employee went to the employer’s premises to retrieve his paycheck. After a discussion about a discrepancy in the paycheck, the employee was fired. As the employee was leaving the employer’s premises, he was struck by his former supervisor. The court concluded that the claimant’s injuries arose out of and in the claimant’s employment because the altercation occurred on the employer’s premises and was generated by a discrepancy in the employee’s paycheck See also Smith v. Drake Industries, Inc., W.C. No. 3-948-301, (November 5, 1990).
In L.E.L. Construction v. Goode, an employee was killed while traveling from the work site to the employer’s business office to pick up his paycheck. In L.E.L., it was the employer’s normal practice to deliver the employee’s paycheck to him at the work site. However, the employee obtained special permission to pick up his paycheck a day early at the employer’s business office. Accordingly, the court concluded that the travel was specifically authorized by the employer. The court also found that the employee’s travel conferred a benefit on the employer by relieving the employer of the duty to deliver the paycheck to the employee at a remote job site. Under these circumstances, the court held that the employee was acting within the course and scope of his employment at the time of the fatal injuries. We understand L.E.L. Construction to reflect the court’s conclusion that the collection of pay is incidental to employment. L.E.L. Construction, 849 P.2d at 883.
Here, unlike the employee in Alpine Roofing Company v. Dalton, the claimant was not injured on the employer’s premises. The injury occurred en route back from the employer’s home office after the claimant and his foreman had picked up the crew’s paychecks. Since the injury did not occur on the employer’s premises it is subject to the “going to and coming from” rule. Once the collection of pay has been identified as a work-connected activity, it follows that the normal rules for the resolution of the issue of the causal relationship between employment and the travel apply. 2 A. Larson, Workers’ Compensation Law, § 26.03(3) at 26-13 to-14 (2005).
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In general, a claimant who is injured while going to or coming from work does not qualify for recovery because such travel is not considered to be performance of services arising out of and in the course of employment. See Industrial Commission v. Lavach, 165 Colo. 433, 437-38, 439 P.2d 359, 361 (1968); Berry’s Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 373, 423 P.2d 2, 4-5 (1967). This principle is known as the “going to and from work” rule. See Berry’s Coffee Shop, Inc., 161 Colo, at 373, 423 P.2d at 4-5. However, in Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999), the supreme court noted that Colorado has recognized many exceptions to this rule to account for varying and unusual circumstances that create a causal connection between the employment and an injury that occurred while the employee was going to and from work.
In Madden v. Mountain West Fabricators, the court reiterated that resolution of the issue of the causal relationship between the employment and the travel is fact specific, but directed the consideration of certain “variables.” The court stated as follows:
These variables include but are not limited to: (1) whether the travel occurred during working hours, (2) whether the travel occurred on or off the employer’s premises, (3) whether the travel was contemplated by the employment contract, and (4) whether the obligations or conditions of employment created a “zone of special danger” out of which the injury arose.
Madden, 977 P.2d at 864.
The Madden court recognized that the question of whether the travel was contemplated by the employment contract has the “potential to encompass many situations.” Id. Generally, these situations involve the following classifications: (a) the particular journey was assigned or directed by the employer, (b) the travel was at the express or implied request of the employer and conferred a benefit beyond the employee’s arrival at work, and (c) the travel was singled out for special treatment as an inducement to employment. The common element in these types of cases is that the travel is a substantial part of the service to the employer. Finally, if the claimant establishes only one of the four “variables,” recovery depends upon whether the evidence supporting that variable demonstrates a causal connection between the employment and the injury such that the travel to and from the work arises out of and in the course of employment. Id. at 865.
Applying principles announced in Madden v. Mountain West Fabricators, the ALJ concluded the claimant’s injuries did not arise out of and in the course of employment.
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In support, the ALJ found the claimant’s travel did not occur during working hours, nor did it occur on the employer’s premises. The ALJ found the record did not establish that the claimant was subjected to a “special zone of danger.”
The ALJ also found the claimant’s travel was not “contemplated by the employment contract” because the employer did not directly request the claimant to make the trip to Windsor, although the employer did authorize paycheck pickup as one of the means of allowing employees to secure their pay. The ALJ reasoned that there was an implied request by the employer that the foreman pick up the paycheck, but this implied request did not extend to the claimant. While the foreman had previously delegated the responsibility for picking up paychecks to other crewmembers, on this day he was only getting transportation from his brother, the claimant. The ALJ found that driving “one’s brother/foreman to Windsor on a non-work day to retrieve paychecks is simply not a substantial part of the service to the employer.”
Here, it was the employees’ option to pick up their paychecks instead of having them mailed or direct deposited. The crew the claimant worked with normally had the foreman pick up the paychecks. Thus, the ALJ could and did reasonably infer that the foreman’s travel to the employer’s business office was authorized by the employer. However, the ALJ found that the implied request by the employer to pick up the paycheck did not extend to the claimant.
The Madden court recognized that travel may be part of the service to the employer if it is at the express or implied request of the employer. In such cases, the claimant is said to be in “travel status.” Id. at 865. The essence of the travel status exception to the “going to and coming from” rule is that when the employer requires the claimant to travel beyond a fixed location established for the performance of his duties, the risks of such travel become risks of the employment Martin K. Eby Construction Co. v. Industrial Commission, 151 Colo. 320, 377 P.2d 745 (1963); Staff Administrators Inc., v. Industrial Claim Appeals Office, 958 P.2d 509, 511 (Colo.App. 1997).
We recognize that the determination of whether a claimant was a traveling employee who was on travel status at the time of an injury presents a question of fact for resolution by the ALJ. Wild West Radio, Inc. v. Industrial Claim Appeals Office, 905 P.2d 6 (Colo.App. 1995) Kelly v. T.J. Construction Inc. W. C. No. 4-554-975 (October 6, 2004). Because it is factual in nature, the ALJ’s determination must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007; Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524
(Colo.App. 1996).
However, in our opinion the undisputed evidence in this case compels the conclusion that the claimant’s travel conferred a benefit to the employer by assisting in
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the delivery of the paychecks to the crewmembers and eliminating the employer’s duty to mail the paycheck. See Schreiber v. Brown Root, Inc., 888 P.2d 274, 277 (Colo.App. 1993) (if facts undisputed and reasonable minds could draw only one inference causation becomes question of law). It appears from the ALJ’s findings that the claimant’s sole reason for traveling to the employer’s business office was to collect his paycheck and assist in the collection of paychecks for the rest of the crew.
Here, the claimant’s travel conferred a benefit on the employer beyond the sole fact of the employee’s arrival at work. Benson v. Colorado Compensation Ins. Authority 870 P.2d 624(Colo.App. 1994); National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 1259
(Colo.App. 1992). The travel benefited the employer by the delivery of paychecks to the crew.
In our opinion, the undisputed evidence demonstrates that the employee’s activities were sufficiently interrelated to the conditions and circumstances under which the employee usually performs his job functions that the activity may reasonably be characterized as an incident of employment, even though the activity itself is not a strict obligation of employment. See Matter of Death of McLaughlin 728 P.2d 337
(Colo.App. 1986); City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985).
Because we conclude that the claimant’s activity in collecting the crew’s paychecks was an incident of employment, it is unnecessary to address the claimant’s remaining contention that the ALJ’s finding that the foreman did not have any authority to direct the claimant to perform work-related duties on their days off was not supported by substantial evidence.
IT IS THEREFORE ORDERED that the ALJ’s order issued September 17, 2007 is reversed and the matter remanded for determination of the benefits and compensation payable to the claimant.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________________ John D. Baird
_____________________________ Thomas Schrant
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MARCELINO CHAVEZ, 5165 DEEPHAVEN STREET, DENVER, CO, 80239 (Claimant), MONARCH STUCCO, INC., WINDSOR, CO, (Employer), PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer), LAW OFFICES OF MIGUEL MARTINEZ, PC, Attn: CAMERON CURRY, ESQ./MIGUEL MARTINEZ, ESQ., DENVER, CO, (For Claimant).
RUEGGSEGGER SIMONS SMITH STERN LLC, Attn: KENT YARBROUGH, ESQ., DENVER, CO, (For Respondents) PINNACOL ASSURANCE, Attn: JON ATKINS, ESQ., DENVER, CO, (Other Party).