W.C. No. 4-548-531Industrial Claim Appeals Office.
February 12, 2004
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Mattoon (ALJ). The respondents argue the ALJ erred in finding the claimant sustained a compensable injury when she fell on the employer’s premises during her lunch break. The respondents further contend the ALJ erred in determining that the authorized treating physician refused to treat the claimant. We affirm the determination that the claimant sustained a compensable injury, set aside the award of medical benefits and remand for the entry of a new order on the issue of medical benefits.
The pertinent facts are essentially undisputed. The claimant was employed as a cashier at the employer’s retail store. The claimant clocked in at 2:00 p.m. on July 18, 2002. At 5:00 p.m. the claimant clocked out for her lunch hour.
After clocking out the claimant obtained her payroll check and proceeded to a bank branch located inside the employer’s store. The claimant intended to cash her check and then leave the employer’s premises to eat lunch. However, the claimant realized she did not have a pen and decided to return to her checkout station to obtain one. As the claimant turned to return to the nearby checkout stand, she collided with the small child belonging to a customer of the employer. The claimant then fell injuring her back and knees.
The claimant returned to work following the injury. However, on July 22, 2002, she requested medical treatment and the employer referred her to Dr. Bradley. Dr. Bradley examined the claimant and referred her to physical therapy. However, on July 24, 2002, the respondents denied the claim. Later, the claimant received a bill from Dr. Bradley for the July 22 treatment. Thereafter, the claimant sought treatment from her own physician, Dr. Moll.
Under these circumstances, the ALJ concluded the injury arose out of and in the course of the claimant’s employment and awarded temporary disability benefits. Specifically, the ALJ found that the injury occurred on the employer’s premises while the claimant was engaged in activities incident to her employment. Therefore, the ALJ awarded temporary disability benefits. The ALJ further concluded that Dr. Moll was authorized to treat the claimant “because the authorization of Dr. Bradley was canceled when the claim was denied” and the right of first selection passed to the claimant.
I.
On review, the respondents first contend the ALJ erred as a matter of fact and law in concluding that the claimant’s injury occurred in the course of the employment, and that it arose out of the employment. According the respondents, the injury did not occur in the course of employment because it happened while the claimant was off the clock performing the purely personal activity of “private banking.” The respondents further argue the injury did not arise out of the employment because the collision with the child did not have its origins in the claimant’s work-related functions or activities. We reject these arguments.
In order for an injury to be compensable it must occur at a time while the employee “is performing service arising out of and in the course of the employment.” Section 8-41-301(1)(c), C.R.S. 2003. The “course of employment” requirement contemplates that the injury must occur within the time and place limitations of the employment and during an activity having some connection with work-related functions. The “arising out of” element is narrower and contemplates that the injury must have its origins in the employee’s work- related functions so as to be considered part of the employment contract.” Madden v. Mountain West Fabricators, 977 P.2d 861,863 (Colo. 1999).
Generally, the questions of whether the injury occurred in the course of and arose out of the employment are issues of fact for determination by the ALJ. In resolving these issues the ALJ must examine the totality of the circumstances. See In re Question Submitted by United States Court of Appeals, 759 P.2d 17 (Colo. 1988); L.E.L. Construction v. Goode, 849 P.2d 876, 883 (Colo.App. 1992), rev’d. on other issues, 867 P.2d 875
(Colo. 1994). Because the issues are factual, we must uphold the ALJ’s pertinent findings of fact if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2003. This standard of review requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186
(Colo.App. 2002).
We first consider the argument that the ALJ erred in finding the injury did not occur in the course of employment. The general rule is that injuries incurred by an employee while leaving the premises, collecting pay, or getting clothes or tools within a reasonable time after completion of the work are within the course of employment because they are normal incidents of the employment relationship. Ventura v. Albertson’s, Inc., 856 P.2d 35, 38 (Colo.App. 1992); Alpine Roofing Co. v. Dalton, 36 Colo. App. 315, 539 P.2d 487 (1975).
Thus, contrary to the respondents’ argument, the mere fact the claimant was not “on the clock” at the time of the injury did not remove her activities from the course of employment. Rather, the injury occurred within minutes of the time the claimant clocked out for her lunch period, and while she was still on the employer’s premises. The evidence fully supports the ALJ’s finding in this regard.
Moreover, the record supports the ALJ’s conclusion that the banking activity was incident to the employment. The claimant had just collected her paycheck on the employer’s premises. The bank itself was located within the confines of the employer’s store. Under these circumstances, it was certainly foreseeable that employees would use the bank in connection with collecting pay from the employer, and would do so while still on the employer’s premises. It follows that the risks associated with the banking activity were associated with the circumstances under which the claimant performed her employment. Thus, the ALJ could plausibly find that under the totality of the circumstances the injury occurred in the course of the employment.
For similar reasons, we reject the argument that the injury did not arise out of the employment. In order for an injury to arise out of employment the claimant need not be performing a duty of employment, nor is it necessary that the claimant’s activity confer some benefit on the employer. Rather, it is sufficient if the activity which causes the injury “is sufficiently related to the conditions and circumstances under which the employee usually performs his job functions that the activity may reasonably characterized as an incident of the employment.” City of Boulder v. Streeb, 706 P.2d 786, 791 (Colo. 1985). In such circumstances the risks of the activity are reasonably incidental to the employment Phillips Contracting, Inc. v. Hirst, 905 P.2d 9, 12 (Colo.App. 1995).
Here, as the ALJ found, the injury occurred on the employer’s premises within a few minutes of the time the claimant clocked out for lunch. The injury was connected with the claimant’s attempt to cash a payroll check at a bank located within the limits of the employer’s store. The claimant tripped over a child belonging to the employer’s customer. Under these circumstances, we cannot say as a matter of law that the ALJ was required to find there was no causal connection between the employment and the injury. Rather, the evidence supports an inference that the risks of the banking activity were reasonably incident to the circumstances of the claimant’s employment. Cf. Broyles v. Wal-Mart Stores, Inc.,
W.C. No. 4-510-146 (July 15, 2002) (claimant who clocked out for lunch and intended to leave premises to eat sustained compensable injury where she was struck by a car in the employer’s parking lot).
II.
The respondents next contend the ALJ erred in finding that the right to select the treating physician passed to the claimant. The respondents argue the ALJ erroneously concluded that the denial of the claim revoked Dr. Bradley’s authorization, and there is no evidence Dr. Bradley refused to treat the claimant for non-medical reasons. Because the ALJ may have applied an incorrect legal standard, we remand for further findings on this issue.
The respondents have the right in the first instance to select the treating physician. Section 8-43-404(5)(a), C.R.S. 2003. The right to select the treating physician is not contingent on the respondents’ willingness to admit liability for the injury. Yeck v. Industrial Claim Appeals Office, 996 P.2d 228 (Colo.App. 1999).
However, the respondents must appoint a physician who is willing to treat the claimant regardless of non-medical issues. See Lutz v. Industrial Claim Appeals Office, 24 P.3d 29 (Colo.App. 2000); Ruybal v. University of Colorado Health Sciences Center, 768 P.2d 1259 (Colo.App. 1988). If the designated physician refuses to treat for non-medical reasons the respondents have the immediate obligation to appoint a new treating upon gaining knowledge of the refusal to treat. If the respondents do not appoint a new physician, the right of selection passes to the claimant. See Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987); Bilyeu v. Babcox Wilcox Inc.,
W.C. No. 4-349-701 (July 24, 2001) aff’d. Bilyeu v. Industrial Claim Appeals Office, (Colo.App. No. 01CA1505, April 11, 2002) (not selected for publication); Wesley v. King Soopers, W.C. No. 3-883-959 (November 22, 1999).
Here, the findings are inadequate to ascertain the basis of the ALJ’s legal conclusion that the right of selection passed to the claimant. Finding of Fact 10 and Conclusion of Law 9 suggest that the ALJ held the right of first selection passed to the claimant automatically when the respondents denied liability for the claim. To the extent that is the basis of the ALJ’s order, she erred. Yeck v. Industrial Claim Appeals Office, supra.
Finding of Fact 10 also notes that the claimant received a bill from Dr. Bradley. It is unclear whether the ALJ inferred from this fact that Dr. Bradley was refusing to treat the claimant for a work-related injury for non-medical reasons. However, even if that inference was drawn, the ALJ made no finding concerning if and when the respondents gained knowledge of Dr. Bradley’s refusal to treat.
On remand, the ALJ shall enter a new order concerning the question of whether Dr. Moll and subsequent referrals were authorized. The order shall be consistent with the legal authorities and principles discussed herein. We express no opinion concerning the sufficiency of the evidence to support any particular finding or conclusion.
IT IS THEREFORE ORDERED that the ALJ’s order dated December 4, 2002, is affirmed insofar as it determined the claimant sustained a compensable injury and ordered the payment of temporary total disability benefits.
IT IS FURTHER ORDERED that the ALJ’s order is set aside insofar as it determined that Dr. Moll and her referrals are authorized providers, and the matter is remanded for entry of a new order on this issue. The new order shall be based on the existing record and an additional hearing is not authorized by this order.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at the addresses shown below on February 12, 2004 by A. Hurtado.
Polly Manning-Manson, 209 W. 10th St., Walsenburg, CO 81089
Wal-Mart Stores, Inc., 2920 Toupal, Trinidad, CO 81082
American Home Assurance, c/o Cindy Hodges, Claims Management, Inc., P. O. Box 1288, Bentonville, AR 72712-1288
Lawrence D. Saunders, Esq., 125 W. “B” St., Pueblo, CO 81003 (For Claimant)
Richard A. Bovarnick, Esq. and Harvey D. Flewelling, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227 (For Respondents)