W.C. No. 4-528-434Industrial Claim Appeals Office.
April 22, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Jones (ALJ) which determined the claimant failed to prove injuries sustained in a motor vehicle accident arose out of and in the course of employment and, therefore, denied and dismissed the claim for workers’ compensation benefits. We affirm.
The ALJ’s pertinent findings of fact may be summarized as follows. The claimant was employed as a used car reconditioning manager and lot manager for Daewoo North (Daewoo). The claimant’s immediate supervisor was the General Manager, Glen Leach (Leach). Leach and the claimant were friends and had worked together for 15 years. Leach also owned vehicles which he repaired and resold under the business name of Overland Sales and Leasing (Overland).
On December 18, 2000, Leach asked the claimant to retrieve a Chevy from another dealership and take it to a repair shop recommended by the claimant. The Daewoo Service Manager, Gary Grillo, (Grillo) gave the claimant a ride to the dealership to pick up the Chevy. While driving to the repair shop the Chevy broke down and the claimant sustained injuries when another vehicle rear-ended the stalled Chevy.
On conflicting evidence, the ALJ found the claimant was aware Leach maintained his privately owned vehicles on the employer’s premises. The ALJ also determined the claimant was also aware the vehicle Leach asked him to pick up on December 18 was not owned by the employer. Under these circumstances, the ALJ determined the claimant failed to sustain his burden to prove that his injuries arose out of and in the course of his employment with the employer. Instead, the ALJ determined claimant was performing duties for Leach to benefit Overland at the time of the motor vehicle accident. Therefore, the ALJ denied the workers’ compensation claim against the respondents.
On review the claimant contends he was complying with a direct order from his immediate supervisor at the time of the motor vehicle accident. Therefore, the claimant argues the evidence compels the conclusion he was acting within the course of his employment at the time of the injury. We disagree.
As argued by the respondent, a compensable injury is an injury which “arises out of and “in the course of” employment. Section 8-41-301
C.R.S. 2002; Price v. Industrial Claim Appeals Office, 919 P.2d 207
(Colo. 1996). An injury “arises out of” employment when the origins of the injury are sufficiently related to the conditions and circumstances under which the employee usually performs his or her job functions 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).
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). Injuries do not arise out of and in the course of employment if, at the time of the injury, the employee is engaged in a personal deviation for his sole benefit. Kater v. Industrial Commission, 728 P.2d 746 (Colo.App. 1986). Numerous factors may be considered in determining whether a claimant’s actions at the time of an injury were for purely personal benefit. Such factors include the length of time the employee deviates from employment, the distance of the deviation from the employment, and whether the employee has violated specific directions of the employer which pertain to the deviation. See Roache v. Industrial Commission, 729 P.2d 991 (Colo.App. 1986).
The question of whether the claimant was engaged in a personal deviation significant enough to remove the claimant from the course and scope of employment is one of fact for determination by the ALJ. See Lori’s Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715
(Colo.App. 1995). Consequently, we are bound by the ALJ’s determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2002 Ackerman v. Hilton’s Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996). This standard requires us to review the evidence in the light most favorable to the prevailing party, and accept the ALJ’s resolution of conflicts in the evidence, and the plausible inferences which she drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Further, we may not set aside the ALJ’s credibility determinations unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571
(Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624
(Colo.App. 1997). Consequently, the ALJ’s credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d 558 (Colo.App. 2000). We conclude no such extreme circumstances exist here.
There was a direct conflict between Leach, the claimant and Grillo concerning whether the claimant and Grillo knew the Chevy was owned by Leach and, thus, whether the claimant knew he was doing the personal business of Leach and not the employer when he left the employer’s premises to pick up the Chevy at the other dealership. Leach testified the claimant and Grillo knew the car belonged to Overland and that the claimant moved the Chevy as part of their friendship. (Tr. pp. 49, 59, 60, 63).
The claimant admitted that Leach asked him to do a “favor” by driving the Chevy to the repair shop. (Tr. p. 26). He also admitted he did other work for Leach outside of his employment which included picking up cars. (Tr. p. 11). However, the claimant and Grillo denied knowing they were doing the business of Leach and not Daewoo at the time of the accident. (Tr. p. 33).
The ALJ was not required to credit the claimant’s testimony. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970). Rather, it was within the ALJ’s sole prerogative as the fact finder, to resolve the conflict in favor of the respondents and credit Leach’s testimony that the claimant knew he was performing the business of Leach and not the employer at the time of the accident. The claimant is obviously dissatisfied with the ALJ’s credibility determinations. However, based upon this record we cannot say that, as a matter of law, the ALJ erroneously rejected the testimony of the claimant and Grillo.
Furthermore, the ALJ’s factual determinations support the conclusion that the claimant was not acting within the course of his employment at the time of the motor vehicle accident. Consequently, the ALJ did not err in denying the claim.
Alternatively, the claimant contends the respondents are responsible for the injuries under the doctrine of “respondeat superior.” In particular, the claimant contends that the employer is responsible because Leach improperly ordered the claimant to perform work for his personal business. Again, we disagree.
Under the doctrine of respondeat superior, an employer is liable for the damage an employee negligently causes while within the scope of employment. Pham v. OSP Consultants, Inc., supra. 992 P.2d 657
(Colo.App. 1999). An act of an employee is within the scope of his employment if the work done is assigned to him by his employer, is necessarily incidental to that work or is customary in the employer’s business. Pediatric Neuroosurgery P.C. v. Russell, 44 P.3d 1063 (Colo. 2002). It follows that where the employee’s act is not in the service of the employer’s business the employer is not liable, under the doctrine of respondeat superior. Pham v. OSP Consultants, Inc., supra.
Here, the ALJ found the employer was unaware Leach was maintain vehicles owned by Overland on the employer’s premises. This finding is supported by substantial, albeit conflicting evidence in the record and, therefore, is binding on review. (Tr. pp. 77, 81); Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, 856 (Colo. 1983).
Further, there is no finding or evidence the employer authorized Leach to direct Daewoo employees to move vehicles owned by Overland. Consequently, the ALJ’s findings do not compel a conclusion the employer is vicariously liable for the claimant’s injuries.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 10, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. Socolofsky
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. 2002. 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 April 22, 2003 to the following parties:
Joseph H. Schepker, 4240 E. 70th Ave., Commerce City, CO 80022
John Kelly, Daewoo North, 2929 W. 104th Ave., Westminster, CO 80234
American Alternative Insurance Corp., c/o Michael Kramish, Risk Enterprise Management, P. O. Box 6500, Englewood, CO 80155
John A. Steninger, Esq., 4500 Cherry Creek Drive South, #930, Denver, CO 80246 (For Claimant)
Kyle L. Thacker, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: A. Hurtado