W.C. No. 4-443-255Industrial Claim Appeals Office.
October 13, 2000
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which determined the claimant failed to prove a compensable injury and, therefore, denied and dismissed the claim for workers’ compensation benefits. We set aside the order and remand for the entry of a new order.
The essential facts are undisputed. 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.
Relying on Madden v. Mountain West Fabricators, 977 P.2d 861
(Colo. 1999), and Staff Administrators Inc., v. Reynolds, 977 P.2d 866 (Colo. 1999), the ALJ found 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 also determined the claimant failed to prove that the parking lot created a “zone of special danger.” Therefore, the ALJ determined the claimant failed to prove the injury arose out of and in the course of the employment.
On review the claimant contends the ALJ erroneously determined the injury is not compensable in the absence of proof of a “special hazard” or “zone of special danger.” We agree.
To prove a compensable injury the claimant must establish that the injury arose out of and in the course of employment. Section 8-41-301(1)(b), C.R.S. 2000. 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 be sufficiently related thereto so as to be considered part of the employee’s service to the employer. However, there is no requirement that the activity be a strict duty or obligation of employment. 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).
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). However, we are not bound by the ALJ’s determination if it is not consistent with the law. See § 8-43-301(8), C.R.S. 200 ; Industrial Commission v. Rowe, 162 Colo. 248, 425 P.2d 274 (1967).
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. 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). Proof of a “special hazard” or a “zone of special danger” constitutes an exception to the going to and coming from rule and is relevant where the claimant seeks compensation for injuries which occur off the employer’s premises Madden v. Mountain West Fabricators, supra; Perry v. Crawford Co. 677 P.2d 416 (Colo.App. 1983); see also Martin K. Eby Construction Co. v. Industrial Commission, 151 Colo. 320, 710 P.2d 1164 (Colo.App. 1985).
Parking lots maintained or owned by the employer are generally considered to be part of the employer’s premises. Consequently, any injury which would be compensable if sustained on the employer’s main premises is also compensable if sustained in the employer’s parking lot. See Larson’s Workers’ Compensation Law, § 13.04 [2] [a] [b]. 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 with record support that Sam’s leased and maintained a parking lot for its store. (Finding of Fact 6). Further, it is undisputed 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. (Findings of Fact 7, 8). Accordingly, the ALJ’s findings compel the conclusion that the parking lot was part of the employer’s premises.
The ALJ also found that on the day of the injury the claimant parked in the employee parking lot and was walking towards the loading dock entrance as instructed. Under these circumstances, we conclude as a matter of law that the claimant was injured on the employer’s premises. Thus, the claim is not governed by the “going to and coming from” rule and the ALJ erroneously required the claimant to establish that the injury was the result of a “special hazard” or “zone of special danger.”
On remand the ALJ shall enter a new order on the issue of compensability which is consistent with the applicable law. Based on that determination the ALJ shall determine the claimant’s entitlement to specific workers’ compensation benefits.
For purposes of our remand, we note the respondents’ contention that because the claimant was not on paid status at the time of the injury, she failed to prove the injury occurred in the “course of employment.” However, 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. Larson, Workers’ Compensation Law 21.06(1)(2) (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). 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. Furthermore, when there is some legitimate special reason why the employee needs a longer- than-normal interval, the course of employment may be extended to surround the extra time. Larson § 21.06(1)(b) (1999).
Finally, we note that the respondents’ opposition brief was not filed until after the ALJ transmitted the file for review. Nevertheless, we have considered the respondents’ appellate arguments and they do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 10, 2000, is set aside and the matter is remanded to the ALJ for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed October 13, 2000 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: A. Pendroy