W. C. No. 4-689-120.Industrial Claim Appeals Office.
November 2, 2007.
FINAL ORDER
The claimant seeks review of a supplemental order of Administrative Law Judge Martinez (ALJ) dated July 19, 2007 that denied and dismissed the claimant’s claim for workers’ compensation benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant worked for the employer as an assistant foreman. On November 17, 2005 the claimant was injured in a motor vehicle accident that occurred while he was on his way to work. At the time of the accident, the claimant was en route to a jail to transport inmates to the job site, who also worked for the employer. There was conflicting evidence in the record as to whether the claimant was directed to transport employees as part of his service to the employer. The ALJ weighed the conflicting evidence and found that the testimony of the claimant was not credible. Conversely, the ALJ credited the testimony of the respondents’ witnesses and found that the claimant voluntarily entered into a carpool arrangement with other employees and that pursuant to the carpool arrangement, the claimant was paid by the coworkers for transporting them to the job site. He further found that transporting the coworkers from the jail was not a part of the claimant’s job functions for the employer. The employer did not require the claimant to transport coworkers to work. The policy of the employer at the time of the claimant’s motor vehicle accident was that each employee was responsible for getting himself to work.
The ALJ entered an order dated March 20, 2007 that denied and dismissed the claimant’s claim for workers’ compensation benefits. The claimant sought review and
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the ALJ issued a supplemental order dated July 19, 2007, which again denied the claim. The claimant filed a petition to review the supplemental order and the ALJ denied the claimant’s motion to file a brief in support of his petition to review. The petition to review contains only general allegations of error, derived from § 8-43-301(8), C.R.S. 2007. Moreover, without a brief in support of his petition to review the ALJ’s supplemental order the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986). We have reviewed the record and we perceive no reversible error.
An injury “arises out of and in the course of” employment, and is therefore compensable under the Workers’ Compensation Act, when it occurs during an activity which is sufficiently connected to the conditions and circumstances under which the employee usually performs his or her job functions. Price v. Industrial Claim Appeals Office, 919 P.d. 207 (Colo. 1996). The “arising out of” requirement is met when the origins of the injury are work-related, and the injury is sufficiently related to the work to be considered part of the employee’s service to the employer. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d. 118 (Colo.App. 1994).
Injuries sustained by employees going to and from work are usually not compensable. Berry’s Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 212 (Colo. 1967). However, there is an exception when “special circumstances” create a causal relationship between the employment and the travel beyond the sole fact of the employee’s arrival at work Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999) Monolith Portland Cement v. Burak, 772 P.2d 688 (Colo. 1989).
In Madden v. Mountain West Fabricators, supra, the court listed four factors which are relevant in determining whether “special circumstances” have been established which create an exception to the “going to and coming from” rule. These factors are: 1) whether the travel occurred during work 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.” 977 P.2d at 864. The court also noted that a “common link” explaining the cases that relied upon the third factor was that travel is a “substantial part of the service to the employer.” Madden, 977 P.2d at 865.
The question of whether the claimant presented “special circumstances” sufficient to establish the required nexus is generally a factual determination to be resolved by the ALJ based upon the totality of circumstances. Staff Administrators Inc., v. Reynolds, 977 P.2d 866
(Colo. 1999); City and County of Denver School District No. 1 v. Industrial Commission, 196 Colo. 131, 581 P.2d 1162 (1978). However, the ALJ’s factual determinations are only binding if supported by substantial evidence in the record.
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Section 8-43-301(8), C.R.S. 2007; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998).
Here the ALJ’s factual determinations are supported by substantial evidence in the record and he correctly weighed the factors set forth i Madden in light of those factual findings. At the time of the accident, the claimant was en route to transport inmates to work in exchange for payment from the inmates. Tr. at 17-18, 28, 39. The claimant was driving pursuant to an agreement between him and the inmates. Tr. at 88-89. The employer was not involved in the agreement. Tr. at 37-38. The claimant was not ordered by employer to transport the inmates. Tr. at 39, 52, 59. The claimant’s transporting his coworkers was not contemplated or required by the claimant’s employment with the employer. Tr. at 40, 58, 59. The claimant’s motor vehicle accident did not occur during working hours. Tr. at 18, 19, 42. The claimant’s motor vehicle accident did not occur on the work premises. Tr. at 18. The claimant’s motor vehicle accident occurred while the claimant was traveling to work. Tr. at 18-19. The ALJ also found that the conditions of the claimant’s employment did not create a “zone of special danger,” as defined i Madden.
There is conflicting evidence in the record and the ALJ noted that the claim revolved around the issue of credibility. It is the ALJ’s sole prerogative to evaluate the credibility of the witnesses and the probative value of the evidence. We may not substitute our judgment for that of the ALJ unless the testimony the ALJ found persuasive is rebutted by such hard, certain evidence that it would be error as a matter of law to credit the testimony. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Testimony which is merely biased, inconsistent, or conflicting is not necessarily incredible as a matter of law. People v. Ramirez, 30 P.3d 807 (Colo.App. 2001). The existence of evidence which, if credited, might permit a contrary result also affords no basis for relief on appeal. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992). Although there was conflicting evidence produced at the hearing, the findings are amply supported by substantial evidence. Consequently, those findings must be upheld on review. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002). We perceive no basis upon which to set aside the ALJ’s order.
Finally, because of our resolution of this matter, it is unnecessary for us to determine whether at the time of his injury the claimant was engaged in “ridesharing,” within the meaning of § 8-40-201(8), C.R.S. 2007, which excludes that activity from the definition of employment.
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IT IS THEREFORE ORDERED that the ALJ’s order dated July 19, 2007 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
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KELLY HALL, 662 S BELLFLOWER DRIVE, PUEBLO, CO, (Claimant).
WESTERN SUMMIT CONSTRUCTION INC., Attn: JANET POLACEK, C/O: THE INDUSTRIAL COMPANY, DENVER, CO, (Employer).
ZURICH NORTH AMERICA, Attn: VALERIE BURKE, KANSAS CITY, MO, (Insurer).
KONCILJA KONCILJA, P.C., Attn: STEPHEN M. JOHNSTON, ESQ., PUEBLO, CO, (For Claimant).
THE KITCH LAW FIRM, Attn: MARSHA A. KITCH, ESQ., EVERGREEN, CO, (For Respondents).
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