W.C. No. 4-443-255Industrial Claim Appeals Office.
April 10, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ) which determined the claimant suffered an injury arising out of and in the course of employment and awarded medical benefits. We affirm.
The claimant was employed by Sam’s Wholesale Club (Sam’s) as a product demonstrator. On Monday, November 23, 1999, at approximately 9:30 a.m., the claimant injured her ankle when she slipped and fell on ice in Sam’s parking lot. At the time of the injury the claimant was walking from her car to the loading dock entrance of the store to begin her work shift at 10:00 a.m. The respondents denied liability for the injury.
In his prior order the ALJ determined the claimant’s injury fell within the general rule that injuries while “coming to and going from” work are not compensable in the absence of proof that the injury was the result of “special circumstances” which were not encountered by the general public. The ALJ found the claimant failed to prove that the parking lot created a “zone of special danger.” Therefore, the ALJ determined the claimant failed to prove she suffered a compensable injury and denied the claim. The claimant timely appealed.
On review, we concluded the ALJ erroneously determined the injury is not compensable in the absence of proof of a “special hazard” or “zone of special danger.” In support, we noted that the “going to and coming from” rule applies to injuries which occur while the employee is traveling to work or from work, and the injury occurs off the employer’s premises. However, once the claimant arrives at work and is on the employer’s premises, the rule is no longer applicable. See Roache v. Industrial Commission, 729 P.2d 991 (Colo.App. 1986); Perry v. Crawford Co., 677 P.2d 416 (Colo.App. 1983). Further, parking lots maintained or owned by the employer are generally considered to be part of the employer’s premises. This principle applies even if the lot is not owned or maintained by the employer, but merely made available for use by the employees. State Compensation Insurance Fund v. Walter, 143 Colo. 549, 354 P.2d 591 (Colo. 1960); Friedman’s Market, Inc. v. Welham, 653 P.2d 760 (Colo.App. 1982); Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo. App. 92, 554 P.2d 705 (Colo.App. 1976); Seltzer v. Foley’s Department Store, W.C. No. 4-432-260 (September 21, 2000).
Here, the ALJ found Sam’s leased and maintained a parking lot for its store. (Finding of Fact 6). Further, it is undisputed that the employer designated a specific part of the lot for use by its employees, and instructed the employees to enter the store through the loading dock area on weekdays. Under these circumstances, we concluded as a matter of law that the claimant’s injury while walking across the parking lot occurred on the employer’s premises, and that the ALJ erroneously required the claimant to establish that the injury was the result of a “special hazard” or “zone of special danger.” Therefore, we set aside the ALJ’s order and remanded the matter to the ALJ to enter a new order.
On remand the ALJ entered the order currently under review. The ALJ determined the claimant sustained her burden to prove that the injury arose out of and in the course of employment. In support, the ALJ found the claimant typically arrived 30 minutes before her work shift and that the employer did not object. Further, the ALJ found there was no evidence that thirty minutes was an unreasonable interval of time to arrive before a work shift. The ALJ also determined that even though the claimant was not “clocked in” at the time of the injury, walking from the parking lot to the store was a preparatory act of employment regularly performed by Sam’s employees.
On appeal the respondents contend that the record fails to support the ALJ’s finding that the injury occurred within the “time” limits of the employment. In support, the respondents rely on evidence Sam’s only requested employees arrive 5 minutes prior to their work shift and prohibited employees from clocking in before their shift. The respondents also contend the ALJ erroneously required them to prove that arriving for work 30 minutes early was “unreasonable.”
Further, the respondents contend there is no authority that walking across a parking lot to the work site is a preparatory act of employment. Therefore, they argue the ALJ erroneously found the claimant proved the injury “arose out of and in the course of” employment. We reject these arguments.
To prove a compensable injury the claimant must establish that the injury arose out of and in the course of employment. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The “in the course of” test refers to the time, place and circumstances of the injury. See Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991). As stated in our Order of Remand, where the employee has a fixed time and place of work, the “course of employment” embraces a reasonable interval before and after official working hours when the employee is on the employer’s property engaged in preparatory acts of employment and not engaged in a personal deviation. Larson, Workers’ Compensation Law § 21.06(1)(a) (d) (1999); Industrial Commission v. Hayden Coal Co., 113 Colo. 62, 155 P.2d 158 (1944) (an interval up to thirty-five minutes has been allowed for the arrival and departure from work); Ventura v. Albertson’s Inc., 856 P.2d 35 (Colo.App. 1992). The rule is not confined to activities that are necessary. Rather, it is sufficient if the activities can be said to be reasonably incidental to the work. Larson § 21.06.(1)(a). What constitutes a reasonable interval depends not only on the length of time involved but also on the circumstances occasioning the interval and the nature of the employee’s activity.
We do not dispute that it is the claimant’s burden to prove she was in the course of employment at the time of the injury. However, we do not read the ALJ’s order as having improperly shifted the burden of proof to the respondents. To the contrary, we understand the ALJ as having found that the claimant presented prima facie evidence that her course of employment included a 30 minute interval before she clocked in and that the respondents presented no evidence that the interval was unreasonable. See Rockwell International v. Turnbull, 802 P.2d 1182, 1184 (Colo.App. 1990). The respondents’ arguments notwithstanding, the ALJ’s findings are supported by the claimant’s testimony that she “always went in early,” and the employer did not object as long as she did not clock in early. (Tr. p. 12). Furthermore, Sam’s Personnel Training Coordinator, Holly Richards, testified she knew the claimant usually came in early to work and admitted it wasn’t a problem, “at all.” (Tr. p. 19). Therefore, we may not interfere with the ALJ’s determination that the claimant sustained her burden to prove the injury occurred during the course of employment.
The “arising out of” test is one of causation and requires that the injury have its origin in an employee’s work-related functions and must occur while the claimant is “performing service” arising out of the employment. Section 8-41-301(1)(b), C.R.S. 2000. However, there is no requirement that the activity be a strict duty or obligation of employment. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985). Rather, it is sufficient if the injury arises out of a risk which is reasonably incidental to the conditions and circumstances of the particular employment. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9
(Colo.App. 1995). This includes discretionary activities on the part of the employee which are devoid of any duty component and unrelated to any specific benefit to the employer. City of Boulder v. Streeb, supra L.E.L. Construction v. Goode, 849 P.2d 876 (Colo.App. 1992), rev’d on other grounds 867 P.2d 875 (Colo. 1994) (claimant sustained fatal compensable injuries while traveling between the job site and the employer’s main office to pick up a paycheck).
In Industrial Commission v. Hayden Coal Co., supra, the claimant arrived approximately one hour early for work so he could use the washroom to change his clothes. After changing, the claimant was injured while rushing to clock in for his shift. Under these circumstances, the court held the injury occurred while performing a work-related service within the meaning of the Workers Compensation Act.
The determination of whether there is a sufficient “nexus” or causal relationship between the claimant’s employment and the injury is one of fact which the ALJ must determine based on the totality of the circumstances. In Re Question Submitted by the United States Court of Appeals, 759 P.2d 17 (Colo. 1988); Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996). We must uphold the ALJ’s determination if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2000 Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141
(Colo.App. 1998). Moreover, the ALJ’s finding may be inferred from circumstantial evidence. Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
Here, irrespective of whether Sam’s required employees to drive to work, the ALJ recognized that Sam’s contemplated its employees would drive to work and therefore, Sam’s designated a specific parking area for employees. Under these circumstances, the ALJ reasonably inferred that walking across Sam’s parking lot was incidental to the employment.
In any case, Sam’s also directed employees to enter the store through the loading dock. Therefore, regardless of whether the claimant drove to work and parked in the designated parking area, the employment inherently required the claimant to walk towards the loading dock doors. If follows that walking to the loading dock doorway is incidental to the claimant’s employment.
Here, the unrefuted evidence indicates the claimant was walking to the loading dock door when she slipped on the ice. (Tr. p. 5). Consequently, we perceive no basis to disturb the ALJ’s finding that the claimant’s injury arose out of a risk which was incidental to the employment. Insofar as evidence the claimant sat in her car and smoked a cigarette immediately prior to the accident may be considered a personal deviation, the deviation ended when the claimant left her car and began walking towards the work site.
The respondents remaining arguments have been considered and are not persuasive.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 29, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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 April 10, 2001 to the following parties:
Carolyn S. Harrell, 619 Maple St., Colorado Springs, CO 80903
Sam’s Wholesale Club, 1850 E. Woodman Rd., Colorado Springs, CO 80920-3326
American Home Assurance Co., AIG, P. O. Box 32130, Phoenix, AZ 85064
Claims Management, Inc., P. O. Box 3708, Bartlesville, OK 74006-3708
James A. May, Esq., 105 E. Moreno Ave., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Richard A. Bovarnick, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)
BY: L. Epperson