W.C. No. 4-230-125Industrial Claim Appeals Office.
February 14, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Stuber (ALJ) which determined that the claimant sustained a compensable injury while driving home from work. We affirm.
The ALJ found that the claimant was employed as a security guard at a nuclear facility. Her usual hours of work were from 10:00 p.m. to 6:00 a.m. The claimant occasionally worked overtime when requested by the employer.
On the night of January 19 and morning of January 20, 1992, the plant was engulfed in a snow storm. The snow triggered an unusual number of “false alarms” which required the claimant to walk through deep snow and strong winds while carrying firearms.
At the end of her regular shift, the claimant was required to work an additional four hours of overtime because another employee could not reach the plant. The snow storm continued for two hours of the claimant’s overtime shift.
After she completed the overtime, the claimant left the plant and began driving home. She fell asleep at a stop sign which resulted in an automobile accident and injuries.
The ALJ found that the respondent-employer’s action in requiring the claimant to work “four hours of overtime in extremely difficult circumstances coupled with her fatigue even after her regular shift probably are the reason for her accident.” Thus, the ALJ determined that this case falls within the “special errand exception” to the “going to and coming from rule” because the claimant proved a sufficient “nexus” between the injuries and her employment. He therefore concluded that the claimant’s injuries arose out of and in the course of her employment, and awarded benefits.
On review, the respondents contend that the ALJ erred in finding an exception to the “going to and coming from rule.” The respondents cite case law from other jurisdictions which suggests that requiring a claimant to work overtime does not establish a sufficient causal connection between the employment and a subsequent injury allegedly caused by fatigue. We find no error.
In order for an injury to be compensable, the claimant must have been performing a service “arising out of and in the course” of employment. Section 8-41-301(1)(b), C.R.S. (1995 Cum. Supp.). This statute requires that there be a sufficient “nexus,” or causal relationship, between the claimant’s activity at the time of the injury and the circumstances of employment. See Benson v. Colorado Compensation Insurance Authority, 870 P.2d 624 (Colo.App. 1994). Determinations of compensability generally turn on the circumstances of each case, and therefore, are questions of fact for the ALJ. Alpine Roofing Co. v. Dalton, 36 Colo. App. 315, 539 P.2d 487 (1975). Thus, we must uphold a finding of compensability if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).
As pointed out by the respondents, the general rule is that an injury sustained by an employee while traveling to or from work is not compensable. Berry’s Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 2 (Colo. 1967). However, our courts have identified exceptions to this rule where the evidence demonstrates that the employee’s travel conferred some benefit on the employer other than the employee’s arrival at work, or where the travel was at the express or implied direction of the employer. See Benson v. Colorado Compensation Insurance Authority, supra.
Although we find no Colorado cases addressing facts similar to those present here, Professor Larson has evaluated cases where the claimant alleges that overtime work caused fatigue, which in turn results in an accident while traveling home. Larson states that the “special errand rule is ordinarily held inapplicable when the only special component is the fact that the employee began work earlier or quit work later than usual.” However, Larson goes on to state that if the “amount of overtime work becomes so great as to increase markedly the factor of fatigue, and when this factor contributes to the accident, there is an even more cogent case for finding that the longer hours of work made the homeward trip more hazardous.” 1 Larson, Workmen’s Compensation Law, § 16.14.
We find Larson’s reasoning persuasive. In our view, if the evidence demonstrates that the employer placed unusual demands on the claimant’s time, and that these demands were unusually fatiguing, the circumstances warrant application of the “special errand” exception to the going to and coming from rule. This is true because, under such circumstances, the demanding overtime work creates a risk of travel not ordinarily associated with the employee’s travel to and from work.
Moreover, we believe this conclusion is supported by analogous Colorado cases. Colorado courts have awarded compensation where the claimant sustains an off-premises injury and the evidence proves that the employer required the claimant to traverse a particularly hazardous route while traveling to and from work. See Welham v. Friedman’s Market, Inc., 653 P.2d 760 (Colo.App. 1982); Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo. App. 92, 554 P.2d 705 (1976); Walsh v. Industrial Commission, 34 Colo. App. 371, 527 P.2d 1180 (1974).
Here, substantial evidence supports the ALJ’s findings that the claimant was required to work overtime, and that the overtime was unusually demanding because of the snow storm. Moreover, the evidence supports the ALJ’s conclusion that the overtime work caused the claimant’s fatigue, which in turn resulted in her injuries. Because the ALJ’s findings are supported by the evidence, and justify his conclusion that there was a “nexus” between the claimant’s employment and her injury, we must uphold the order. Section 8-43-301(8).
IT IS THEREFORE ORDERED that the ALJ’s order dated October 5, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed February 14, 1996 to the following parties:
Debra K. Otterstetter, 150 Pacific Ave., Ft. Lupton, CO 80621
John Ledger, Burns International Security Services, 16805 WCR 19 ~, Platteville, CO 80651
Debra Shoemaker, Constitution State Service Co., % Travelers Co., P.O. Box 173762,
Denver, CO 80217-3762
Thomas J. Roberts, Esq., 1650 Emerson St., Denver, CO 80218 (For the Claimant)
Lawrence D. Blackman, Esq., 1290 Broadway, Ste. 708, Denver, CO 80203 (For the Respondents)
By: ____________________