W.C. No. 4-504-148.Industrial Claim Appeals Office.
June 5, 2002.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Gartland (ALJ) which required them to pay medical benefits. The respondents contend the ALJ erred in finding the claimant suffered compensable injuries. We disagree, and therefore, affirm.
The claimant was employed as a nurse’s aide, which required her to travel to patients’ homes and provide on site health care services. The claimant was paid by the hour, and was reimbursed for mileage beginning upon her arrival to the employer’s office or the home of her first daily appointment. On April 11, 2001, the claimant suffered injuries in a motor vehicle accident while driving to her first appointment. The respondents denied liability on grounds the claimant was not “on the clock” at the time of the accident.
The ALJ found travel to patients’ homes was contemplated by the employment contract. In fact, the ALJ found the claimant had to drive and was required to have her own car to keep the employment. Further, the ALJ found the claimant’s travel to the home of the employers’ clients was a substantial and essential part of the claimant’s job duties, which conferred a benefit on the employer beyond the claimant’s arrival to work. Therefore, the ALJ found the claimant’s injuries arose out of and in the course of the employment.
On review, the respondents contend the ALJ’s award is inconsistent wit Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). We disagree.
An injury “arises out of and in the course of” employment, and is therefore compensable under the Workers’ Compensation Act, when it occurs during an activity which is sufficiently connected to the conditions and circumstances under which the employee usually performs his or her job functions. Price v. Industrial Claim Appeals Office, 919 P.2d 207
(Colo. 1996). The “arising out of” requirement is met when the origins of the injury are work-related, and the injury is sufficiently related to the work to be considered part of the employee’s services to the employer. General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994).
Generally, injuries sustained by an employee going to and from work are not compensable. Berry’s Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 423 P.2d 212 (Colo. 1967). However, there is an exception where “special circumstances” exist to establish a causal connection between the travel and employment beyond the claimant’s mere arrival at work. The essence of this exception is that when the employer requires the employee to travel beyond a fixed location established for the performance of the job duties, the risks of such travel become risks of the employment. Thus, injuries sustained during travel between remote job sites and the employer’s premises have been found compensable. See Tatum-Reese Development Corp. v. Industrial Commission, 30 Colo. App. 149, 490 P.2d 94
(1971); Benson v. Colorado Compensation Insurance Authority, 870 P.2d 624
(Colo.App. 1994).
Another exception exists when the employer requires the employee to provide a private automobile to perform the duties of the employment. See State Compensation Insurance Fund v. Industrial Commission, 89 Colo. 426, 3 P.2d 414 (1931); National Health Laboratories v. Industrial Claim Appeals Office, 844 P.2d 1259 (Colo.App. 1992); Monolith Portland Cement v. Burak, 772 P.2d 688 (Colo.App. 1989). For example, in Whale Communications v. Osborn, 759 P.2d 848 (Colo.App. 1988), the claimant was injured while driving home in her personal automobile. The Whale Court reasoned that the “requirement to provide one’s own automobile for work eliminates the employee’s option to utilize other means of private or public transportation” and avoid the hazards of the regular journey. Id. at 848. Therefore, the Whale Court held there was a sufficient nexus between the travel and the employment to find the injuries arose out of and in the course of employment.
In Madden v. Mountain West Fabricators, supra, the court listed four factors which are relevant in determining whether “special circumstances” have been established to create an exception to the “going to and coming from” rule. These factors are: 1) whether the travel occurred during work hour; 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.” 977 P.2d at 864. Contrary to the respondents’ contention, it is not necessary that all four factors exist to support a finding of “special circumstances.” In fact, the existence of one variable is sufficient to create special circumstances if the evidence supporting that variable demonstrates a causal connection between the employment and the injury. Id. at 865; see also Staff Administrators Inc., v. Industrial Claim Appeals Office, 977 P.2d at 868. Therefore, we reject the respondents’ contention that the ALJ erred insofar as she focused only on the third factor.
The question of whether the claimant presented “special circumstances” sufficient to establish the required nexus is a factual determination to be resolved by the ALJ based upon the totality of circumstances. Triad Painting Co. v. Blair, 812 P.2d 638 (Colo. 1991); City and County of Denver School District No. 1 v. Industrial Commission, 196 Colo. 131, 581 P.2d 1162 (1978). Therefore, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001; Eisnach v. Industrial Commission, 633 P.2d 502 (Colo.App. 1981). Under the substantial evidence standard, we must defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.d. 411 (Colo.App. 1995).
The respondents’ arguments notwithstanding, there is substantial evidence to support the ALJ’s finding that the claimant sustained her burden to prove her travel was at the express direction of the employer and conferred a benefit on the employer beyond her arrival to work. Furthermore, the ALJ’s findings support her determination the claimant proved a compensable injury.
The respondents contend the claimant’s travel only conferred a benefit on the employer after the claimant arrived at her first appointment of the day. However, in Whale Communications v. Osborn, supra, the court did not condition compensability on proof the claimant actually used her vehicle to meet with the employer’s customers on the day of the accident.
Similarly, in Jones v. Weld County Government, W.C. No. 4-176-234
(December 8, 1996), aff’d. Weld County Government v. Jones (Colo.App. No. 94CA2195, August 24, 1995 (not selected for publication), the claimant suffered injuries while driving home from work in his personal vehicle. The court upheld our conclusion that it was immaterial whether the claimant actually used his personal vehicle to benefit the employer on the day of the injuries because the claimant was required to bring his car to work to perform his job duties. It follows that even if the employer in this claim did not consider the claimant to be on the clock at the time of the injuries, the ALJ was not precluded from finding that the travel conferred a benefit on the employer.
Next, we reject the respondents’ contention that the ALJ erroneously distinguished this claim from Madden. The claimant in Madden was injured in a motor vehicle accident while traveling from his home in Grand Junction, Colorado to a construction site in Rifle, Colorado. The accident occurred approximately one hour before the claimant was to commence his duties as a construction worker and the claimant was not earning wages or reimbursed for mileage at the time of the accident. However, unlike the circumstances presented here, travel was not contemplated by the employment contract in Madden, and the Madden
claimant was not required to use his own vehicle to perform his job duties. Rather, the Madden claimant was free to carpool or use any other form of transportation to get to the job site.
Here, the claimant was required to use her personal vehicle to travel to multiple job sites throughout the work day. Therefore, regardless of how she got to work, the employment required travel. In fact, the circumstances presented here are not appreciably distinct from the facts in Benson v. Colorado Compensation Insurance Authority, supra. The claimant in Benson was a home health aide who was required to travel to clients’ homes. The Benson claimant was injured while traveling between job assignments for the employer. Although the Benson claimant was not paid for travel time or paid a mileage reimbursement, the court held that the travel conferred a benefit to the employer beyond the claimant’s arrival to work. Therefore, the injuries were compensable. We perceive no basis to treat this claim differently than the claimant in Benson. Consequently, the ALJ did not err in finding a compensable injury.
The respondents’ further arguments have been considered and do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 26, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Kathy E. Dean
__________________________________ Dona Halsey
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. 2001. 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 June 5, 2002 to the following parties:
Carmelita Sanchez, P. O. Box 322, Dove Creek, CO 81324-0322
Southwest Home Health/Southwest Memorial Hospital, 7335 E. Orchard Rd., #200, Englewood, CO 80111-2512
Colorado Hospital Association Trust, _ Mary Ann Donelson, Support Services, P. O. Box 3513, Englewood, CO 80155-3513
Elizabeth E. Salkind, Esq., 572 E. 3rd Ave., Durango, CO 81301 (For Claimant)
Anne Smith Myers, Esq., 3900 E. Mexico, #1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy