W.C. No. 4-520-338Industrial Claim Appeals Office.
August 21, 2002
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which denied and dismissed the claim for workers’ compensation benefits. The claimant argues the ALJ’s findings of fact do not support the conclusion she was injured while “ridesharing” within the meaning of § 8-40-201(8), C.R.S. 2001. The claimant also disputes the conclusion that her injuries did not arise out of and in the course of employment. We set the order aside and remand for entry of a new order.
The pertinent findings are essentially undisputed. The claimant was employed by Tandem Staffing (Tandem), a temporary services agency. The claimant, who had no automobile or driver’s license, would take public transportation to Tandem’s place of business and arrive “early in the morning” to see if work was available that day. If work was assigned, the claimant would be transported to the work site in one of Tandem’s vans, the vehicle of another employee, or by public transportation. If the claimant rode in a van or the vehicle of another employee the claimant was charged $1.00 each way.
On October 24, 2001, the claimant arrived at Tandem’s office and was assigned work at a remote location. The ALJ found the claimant then “chose” to ride to the site in a fellow employee’s car. The claimant sustained injuries in an automobile accident shortly after leaving the employer’s premises.
The ALJ concluded the claimant was engaged in a “ridesharing” arrangement within the meaning of § 8-40-201(8). Thus, the ALJ held the claimant was not an employee of Tandem at the time of the injury. The ALJ further concluded the claimant’s injuries did not arise out of and in the course of employment because they did not occur during working hours or on the employer’s premises, and because the claimant’s travel was not contemplated by the employment contract, and the employment did not create a special zone of danger.
The claimant argues that she was not involved in a ridesharing arrangement, but was instead traveling at the express or implied request of her employer. Consequently, she reasons her injuries are compensable. We agree the claimant was not engaged in ridesharing and remand for further findings concerning the compensability of her injuries.
I.
We first consider whether the claimant was engaged in ridesharing. Section 8-40-201(8) provides that employment “shall not include participation in a ridesharing arrangement as defined in section 10-4-707.5(2), C.R.S.” Insofar as pertinent, § 10-4-707.5(2) defines ridesharing as the “transportation of passengers traveling together primarily to and from such passengers’ places of business or work.” The statute also provides that ridesharing includes arrangements “commonly known as carpools and vanpools.”
In order for an injury to be compensable, it must arise out of and in the course of the claimant’s employment. Section 8-41-301(2)(b) and (c), C.R.S. 2001. Generally, travel to and from the work place is not considered to arise out of and in the course of the employment, and injuries sustained during such travel are not compensable. Whale Communications v. Osborn, 759 P.2d 848 (Colo.App. 1988). However, an exception arises if the travel confers a benefit beyond the claimant’s mere arrival at work, or the employer provides or pays for the claimant’s transportation. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999); Whale Communications v. Osborn, supra.
We have previously concluded that the purpose of the ridesharing statute is to modify the exception to the “going to and coming from rule” which exists if the employer provides the means of transportation or pays the employee’s cost of traveling to and from work. Thus, we have held a “ridesharing arrangement” contemplates a “regular commute from the employee’s home to a relatively fixed work site, on a regular basis,” even if the employer plays a role in organizing and financing the arrangement. However the ridesharing statute does not apply where the claimant is required to travel away from the employer’s place of business at the employer’s direction. Samora v. Tempforce, W.C. No. 4-128-217
(July 15, 1993) (claimant was in travel status and was not “ridesharing” when required to travel away from his home and the employer’s place of business to a remote construction site, and claimant received a $15 per diem).
This conclusion is consistent with the court’s holding in Loffland Brothers Co. v. Industrial Commission, 714 P.2d 509 (Colo.App. 1985). In that case, the claimant was returning home from a remote drilling site and riding in the vehicle of a coworker. The court concluded the claimant was ridesharing and not in travel status because he was “simply returning home from work.”
Here, the undisputed evidence reveals the claimant was not traveling to or from work when the accident occurred. Rather, the claimant had already arrived at the employer’s place of business and was assigned to travel to a remote site to fulfill the employer’s contract to provide the services of temporary employees. In our view, the claimant’s travel from the employer’s place of business to the remote work site does not constitute the type of employer facilitated “commuter-ridesharing” contemplated by the statute. See Smith v. Pinner, 891 F.2d 784, n. 3 (10th Cir. 1989) (tort claim stemming from the same accident described in Loffland Brothers Co. v. Industrial Commission, supra).
II.
We next consider the ALJ’s determination the claimant’s injuries did not arise out of and in the course of employment. We conclude the findings are insufficient to support appellate review. Section 8-43-301(8), C.R.S. 2001.
The ALJ concluded the claimant’s injuries did not arise out of and in the course of employment by applying the four “variables” set forth i Madden v. Mountain West Fabricators, supra. The Madden court stated that the question of whether or not the presence of one variable is sufficient to establish compensability depends on whether the circumstances would demonstrate a causal relationship between the injury and the employment. This is generally a factual question. See Alpine Roofing Co. v. Dalton, 36 Colo. App. 315, 539 P.2d 487 (1975). However, purely conclusory findings are insufficient to support appellate review. Womack v. Industrial Commission, 168 Colo. 364, 451 P.2d 761 (1969).
The ALJ found the claimant’s travel was not “contemplated by the employment contract.” However, in Madden, the court noted that travel is contemplated by the employment contract if it is “at the express or implied request of the employer.” In such circumstances, the travel confers a benefit beyond the employee’s mere arrival at work. 977 P.2d at 861. In cases where the travel is at the express or implied request of the employer, there is no requirement that the claimant be paid for the travel, nor is there any requirement that the employer reimburse the claimant for the cost of the travel. See Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo.App. 1995); Benson v. Colorado Compensation Insurance Authority, 870 P.2d 624, 627 (Colo.App. 1994) (claimant sustained compensable injury while traveling between job sites at her employer’s request even though claimant was not compensated for travel time nor reimbursed for mileage or gasoline). Further, it has been held that where a temporary services employer requires the employee to travel to a fixed location, then dispatches the employee to another work site to perform services, the travel between the temporary service employer’s premises and the remote site is an “integral part of the employment.” Larson’s Workers’ Compensation Law, § 14.03 (2000).
Here, we are unable to ascertain the factual basis for the ALJ’s conclusion that the claimant’s travel between Tandem’s business premises and the location to which the claimant was directed on October 24 was not contemplated by the employment contract. The ALJ expressly found the claimant was “assigned” to the remote site after arriving at Tandem’s place of business. (Finding of Fact 2). This finding is supported by the testimony of Tandem’s witness who stated that on October 24 the employer’s vans were “already on the road, there was no way to get anybody on a van, we had to have somebody with a car.” The witness also testified that because Tandem had to “get somebody out there,” it found an employee with a car and “chose three more people” to ride with the driver to the work site. (Tr. Pp. 19-20).
On remand, the ALJ shall make specific findings of fact concerning whether or not the claimant’s travel was contemplated by the employment contract. The findings shall address the question of whether, under the particular circumstances of this case, the travel was at the express or implied request of the employer. Because we conclude the ALJ’s current order lacks sufficient findings, we should not be understood to express any opinion on the ultimate issue. We merely direct the ALJ to reconsider the record as presently constituted and enter a new order consistent with the views expressed herein. This order does not authorize another hearing.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 6, 2002, is set aside, and the matter is remanded for entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Kathy E. DeYan
__________________________________ Robert M. Socolofsky
Copies of this decision were mailed August 21, 2002 to the following parties:
Berlinda D. Schutter, P. O. Box 2647, Denver, CO 80201-2647
Outsource International/Tandem Staffing, 325 E. Costilla St., Colorado Springs, CO 80903-2105
Zurich American Insurance Co., c/o Jane Madsen, ITT Specialty Risk Services, Inc., P.O. Box 221700, Denver, CO 80222
Mark A. Simon, Esq., 1873 S. Bellaire St., #605, Denver, CO 80222 (For Claimant)
Lawrence D. Blackman, Esq., and Lynda S. Newbold, Esq., 999 18th St., #1755, Denver, CO 80202 (For Respondents)
By: A. Hurtado