W.C. No. 4-538-791.Industrial Claim Appeals Office.
September 26, 2003.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Muramoto (ALJ) which denied and dismissed the claim for workers’ compensation benefits based on injuries sustained in an automobile accident. The claimant contends that some of the ALJ’s findings of fact are not supported by substantial evidence in the record. Alternatively, the claimant asserts the ALJ’s legal conclusion that the automobile travel involved a “personal errand” rather than work-related “special circumstances” is not supported by the evidence and is contrary to the law. We set the order aside and remand for entry of a new order.
The claimant seeks compensation for injuries sustained in a motor vehicle accident which occurred on January 16, 2001. At the time of the injury the claimant was employed as an “accounts manager” for the employer’s temporary services agency. The claimant’s job required her “to meet with prospective clients at their places of business and to give them information about the services” provided by the employer. (Finding of Fact 1).
In April 2002 the claimant filed a claim for benefits and attached a brief statement concerning the circumstances of the injury. The written statement alleges that at the time of the automobile accident, which occurred at approximately 12 p.m., the claimant was traveling from the employer’s office, where she had written a “quote for an early afternoon meeting with the potential new customer,” to her home. The claimant states she planned to lunch at home, proofread the quote, make business phone calls, then leave for the meeting. According to the statement, the claimant’s home is in the “same general vicinity as the direction [she] had to travel for the afternoon meeting with the potential customer.”
At the hearing in November 2002, the claimant testified that she reported to the employer’s office at approximately 7 a.m. and spent 15 minutes typing the “quote” for the potential customer. The claimant stated that she then made 7 or 8 sales calls, after which she headed home to eat lunch, proof the quote and a contact other clients. The claimant also testified that she was unable to return to the office to proofread the quote because she was told by her supervisor that her job was to make sales calls and she would be “written up” if she was seen in the office at any time except in the morning.
The ALJ found that there were “inconsistencies” between the claimant’s written statement and hearing testimony which raise doubts about the claimant’s credibility. Specifically, the ALJ cited the fact that the written statement failed to mention the 7 to 8 sales calls which the claimant testified that she made on the morning of the accident. The ALJ also found that it strains credulity to believe the claimant could not spend more than 15 minutes in the office to “proof a quote for an afternoon meeting with the client.” Consequently, the ALJ found the claimant’s “testimony regarding the sequence of events to be unpersuasive and incredible.”
Based on these findings, the ALJ concluded that at the time of the accident the “claimant was simply on her way home to eat lunch,” and she was “not conferring a benefit upon her employer in so doing.” The ALJ further concluded that if the claimant had been “on her way home after making sales calls, by going home for lunch she was making a distinct departure on a personal errand.” Alternatively, the ALJ found that “had claimant been returning home for lunch directly from the office or from making sales calls, there were no special circumstances establishing a nexus between travel and the circumstances of employment.” (Conclusion of Law 6).
On review, the claimant contends the ALJ erred in finding the claimant’s testimony was inconsistent with the written statement, and engaged in unsubstantiated speculation in discrediting the claimant’s testimony that she could not spend more than 15 minutes in the office. Alternatively, the claimant contends the ALJ misapplied the law in concluding there were no special circumstances which would justify the conclusion that the claimant’s injuries arose out of and in the course of employment. The claimant reasons that the travel was an inherent part of the employment contract and that stopping at home for lunch did not constitute a distinct deviation from the scope of employment. Because the ALJ’s order is insufficient to support appellate review, and because of the ALJ may have misapplied the law, we remand for entry of a new order. Section 8-43-301(8), C.R.S. 2002.
The claimant has the burden of proof to establish that she sustained injuries while performing services arising out of and in the course of the employment. Section 8-41-301(1)(b) (c), C.R.S. 2002. The ALJ must examine the totality of the circumstances to determine whether there is a sufficient nexus between the employment and the injury such that the accident may be said to have occurred in the scope of the claimant’s employment. City and County of Denver School District No. 1 v. Industrial Commission, 196 Colo. 131, 581 P.2d 1162 (1978).
Recently, in Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999), the court addressed circumstances under which travel may be said to arise out of and in the course of employment. The court noted the general rule that travel to and from work does not qualify for recovery. However, it cited four factors which may be considered in determining whether there is a sufficient causal relationship between the travel and employment such that resulting injuries may be found compensable. These variables include: (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.” The court noted, with respect to the third variable, that it has granted “recovery when the employee’s travel is at the employer’s express or implied request or when such travel confers a benefit on the employer beyond the sole fact of the employee’s arrival at work.” Id. at 865.
One recognized exception to this rule exists if the claimant is required to drive a personal vehicle to and from work because the vehicle is used in conducting the employer’s business. In such circumstances the claimant’s driving of the vehicle confers an added benefit beyond the claimant’s mere arrival at work and establishes the requisite causal nexus between the employment and the resulting injury. Whale Communications v. Osborn, 759 P.2d 848 (Colo.App. 1988). Although not explicitly stated in the Osborn opinion, the third Madden factor is implicated because the employment contract dictates the method of travel to and from work.
Another recognized exception to the rule exists when the travel is at the “express or implied request of the employer.” Thus, if the work “requires travel away from the employer’s premises” the claimant is continuously in the course of employment during the trip, except when the employee departs on a personal errand. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9, 11 (Colo.App. 1995). When the claimant is in “travel status” injuries which arise out of those risks reasonably incidental to the conditions and circumstances of the employment are compensable. Hence, “risks associated with the necessity of eating, sleeping, and ministering to personal needs away from home are considered incidental to and within the scope of the traveling employee’s employment.” Id. at 12. When the claimant is in “travel status,” the burden of proof is on the respondents to establish a “distinct departure from the scope of employment.” Pacesetter Corp. v. Collett, 33 P.3d 1230, 1233 (Colo.App. 2001).
Initially, we disagree with the claimant’s contentions that the ALJ’s findings concerning the claimant’s credibility are not supported by substantial evidence in the record. Credibility is an issue solely within the province of the ALJ as fact finder. The ALJ may credit or discredit testimony even if it is unrebutted. Therefore, we may not interfere with the ALJ’s findings concerning the claimant’s testimony. Section 8-43-301(8); Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993).
Nevertheless, the findings of fact must be sufficient to indicate both the factual and legal bases of the award or denial of benefits. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385
(Colo.App. 2000). Further, we are not bound by legal conclusions drawn from undisputed facts. See Schrieber v. Brown Root, Inc., 888 P.2d 274
(Colo.App. 1993).
As we understand the ALJ’s order, she did not completely discount the claimant’s testimony. The ALJ apparently credited the claimant’s testimony that the general nature of the claimant’s work required travel, and that the claimant was going home for lunch when the accident happened. Rather, the ALJ discredited the claimant’s testimony concerning the “sequence” of events, and that the claimant intended to perform work-related activities while she was at home. (Finding of Fact 6). Having discredited the testimony concerning the “sequence” of events, the ALJ determined as a matter of law that regardless of which of the claimant’s version of events is believed, the injuries sustained in the automobile accident did not arise out of and in the course of employment.
Specifically, the ALJ concluded that had the claimant been on the way home after making the 7 to 8 sales calls, stopping for lunch would have constituted a “distinct departure on a personal errand.” However, the factual and legal basis of this conclusion is not apparent from the order. The claimant testified that her home was near the office of the customer which she was required to visit in the afternoon, and this testimony was consistent with the written statement. (Tr. P. 17). The ALJ did not discredit this portion of the claimant’s testimony, nor did she make any finding at all concerning this evidence.
If the claimant’s testimony were credited in this regard, it could support a finding that the claimant was required to travel from the employer’s place of business to the customer’s place of business, and the claimant stopped at her home for lunch because it was convenient to do so. In such circumstances, the ALJ could find the claimant was traveling at the employer’s direction and the employer failed to prove a “deviation” or “personal errand” sufficient to remove the claimant from the scope of the employment. Rather, the stop for lunch could be viewed as a personal ministration which was reasonable under the circumstances See Alexander Film Co. v. Industrial Commission, 136 Colo. 486, 319 P.2d 1074, 1078 (1957) (where employee’s duties require travel away from home, acts of personal ministration such as eating do not take the employee outside the scope of employment so long as they are performed in a “normal and prudent” manner). The fact that, in this case, the personal ministration was to occur in the claimant’s home would not necessarily establish that there was a deviation. Cf. J.C. Carlile Corp. v. Antaki, 162 Colo. 376, 426 P.2d 549 (1967) (where employee, who had attended business meeting, was driving company car home for dinner and was killed, recovery permitted under special circumstance doctrine where evidence indicated decedent planned to return to work).
Neither are there sufficient findings to reveal the factual and legal basis for the ALJ’s conclusion that if the claimant was returning home for lunch from the office after making sales calls, there were no “special circumstances establishing a nexus between travel and the circumstances of employment.” The ALJ apparently credited the claimant’s testimony that she was an outside salesperson required to make calls at locations remote from the employer’s place of business. (Finding of Fact 1). Further, it could be inferred from the evidence that the claimant was required to use her personal vehicle to travel to these various locations. A requirement that the claimant use her personal vehicle to further the employer’s business would be a circumstance which could bring the travel between home and the worksite within the scope of the employment because it would confer a benefit on the employer beyond the claimant’s mere arrival at work. J.C. Carlile Corp. v. Antaki, supra; National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 1259 (Colo.App. 1992); Whale Communications v. Osborn, supra. However, the ALJ’s order does not determine whether the employer required the claimant to use her personal vehicle to further its business, and, if so, the basis of the conclusion that the claimant deviated from the scope of the employment when going home for lunch.
Under these circumstances the matter must be remanded to the ALJ for entry of a new order. In reaching this result, we should not be understood as requiring the ALJ to credit the claimant’s testimony concerning the proximity of her home to the customer which she planned to visit in the afternoon, or that stopping at home for lunch represented a logical progression of the claimant’s business duties. We merely determine that the existing findings are insufficient to support the denial of benefits, and the order must address the factual and legal issues discussed above.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 19, 2002, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein. This order does not authorize further evidentiary proceedings, and the ALJ’s order on remand shall be entered based on the existing record.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Bill Whitacre
Copies of this order were mailed to the parties at the addresses shown below on September 26, 2003 by A. Hurtado.
Victoria Lopez, 5979 E. 62nd Ave., Commerce City, CO 80022
Risk Management, Labor Ready Central, Inc., P. O. Box 2910, Tacoma, WA 98401-2910
ESIS, Inc., c/o CIGNA, P. O. Box 2941, Greenwood Village, CO 80150
J. J. Fraser, III, Esq., 501 S. Cherry St., #500, Denver, CO 80246 (For Claimant)
John H. Sandberg, Esq., 3595 S. Teller St., #407, Lakewood, CO 80235 (For Respondents)