W.C. No. 4-512-380Industrial Claim Appeals Office.
May 21, 2003
FINAL ORDER
Respondent ACS and its insurer, Constitution State Services (collectively ACS respondents) seek review of an order of Administrative Law Judge Harr (ALJ) which holds them liable to pay workers’ compensation benefits. The ACS respondents argue the ALJ erred as a matter of fact and law in determining the claimant’s injuries occurred while he was in “travel status.” We affirm.
The ALJ’s findings may be summarized as follows. The claimant is a worker with specialized knowledge involving asbestos removal. Respondent Colorado Environmental Labor Brokers Services (Labor Brokers) is business which provides labor and payroll services to contractors in the business of removing asbestos. ACS is a contracting firm in the business of removing asbestos from structures.
Under a contractual arangement first agreed to in 1999 Labor Brokers, whose place of business was in Louisiana, provided skilled workers to ACS to remove asbestos at Colorado job sites. In 2000 the claimant became certified to handle asbestos and Labor Brokers hired him as one of its workers. In June 2001 Labor Brokers placed the claimant with ACS to work on its Colorado contracts.
At the time he was sent to Colorado the claimant was a resident of Louisiana. Labor Brokers paid for the claimant’s travel to Colorado. While in Colorado the claimant received a per diem and lived in a motel paid for by ACS. In addition, the claimant received an hourly wage which was paid by Labor Brokers. However, ACS reimbursed Labor Brokers for the claimant’s wage and paid an additional percentage as a brokerage fee. (Findings of Fact 10, 11, 13).
On July 12, 2001, the claimant was injured in a motor vehicle accident. At the time the claimant was riding in a vehicle operated by an ACS supervisor, and was being transported from the motel in Denver to an ACS job site in Greeley.
Under these circumstances, the ALJ found there was a “special employment relationship” between the claimant and ACS, and that the ACS respondents are liable for the claimant’s compensation pursuant to § 8-41-303, C.R.S. 2002. The ALJ further concluded the claimant’s injuries arose out of and in the course of the employment because he was in “travel status” at the time of the accident. In support of this determination the ALJ found the claimant was a resident of Louisiana when hired, and there was no “persuasive evidence” the claimant intended to become a resident of Colorado before the accident. Further, the ALJ found the claimant’s contract with Labor Brokers and ACS contemplated travel from Louisiana to Colorado as evidenced by the payment of travel expenses, lodging expenses, and the per diem.
On review, the ACS respondents do not challenge the ALJ’s finding that they are liable for the claimant’s compensation under the provisions of § 8-41-303. However, they argue the claimant was not in “travel status” at the time of the injury because the claimant’s employment contract only contemplated travel between Louisiana and Colorado, not travel within Colorado. The respondents further contend the claimant was not in travel status because he had decided to become a resident of Colorado at the time of the injury. We are not persuaded by these arguments.
The claimant has the burden of proof to establish that he sustained an injury while performing service arising out of and in the course of the employment. Section 8-41-301(1)(b), C.R.S. 2002. The question of whether the claimant met the burden of proof is ordinarily one of fact for determination by the ALJ. See Pacesetter Corp. v. Collett, ___ P.3d ___ (Colo.App. No. 00CA2099, May 10, 2001). Because the issue is factual, we must uphold the ALJ’s pertinent findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Pacesetter Corp. v. Collett, supra.
Injuries sustained while going to or from work ordinarily do not arise out of and in the course of employment. Whale Communications v. Osborn, 759 P.2d 848 (Colo.App. 1988). However, a number of exceptions have arisen where “special circumstances” demonstrate a sufficient causal relationship between the injury and the employment. These exceptions were recently amplified by the Supreme Court’s opinion in Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999).
The Madden court held the “proper approach” is to consider a number of variables including, but not limited to: (1) whether the travel occurred during working hours, (2) whether the travel was on or off the employer’s premises, (3) whether the travel was contemplated by the employment contract, and (4) whether the employment created a special zone of danger. If only one variable is present, “recovery depends on whether the evidence supporting the variable demonstrates a causal connection between the employment and the injury such that the travel to and from work arises out of and in the course of employment.” Id. at 864-865.
The only variable potentially present in this case is that the employment contract contemplated travel. The critical issue in resolving this question is whether the travel was a substantial part of the service to the employer. The Madden court recognized that travel may be part of the service to the employer if it is at the express or implied request of the employer. In such cases the claimant is said to be in “travel status.” Id. at 865.
When an employee is in travel status the employee is under continuous workers’ compensation coverage unless engaged in a distinct departure on a personal errand. Pacesetter Corp. v. Collett, supra; Phillips Contracting, Inc. v. Hirst, 905 P.2d 9, 11-12 (Colo.App. 1995). Evidence that an employer paid for transportation or provided lodging and meals is indicative of travel status. Phillips Contracting, Inc. v. Hirst, 905 P.2d at 12.
Here, as the ALJ found, there is evidence that Labor Brokers and ACS both provided compensation for the claimant’s travel expenses. The claimant’s costs of travel to Colorado were covered, the claimant received a per diem, and the cost of lodging was paid. Moreover, the claimant was required to travel from Louisiana to Colorado in order to perform the services contemplated by the contract. Because the claimant resided in Louisiana, the ALJ reasonably inferred from the evidence that the claimant was in travel status because both Labor Brokers and ACS requested him to travel away from his home as part of the service to be performed. Because the claimant was in “travel status” from the time he left Louisiana, he was under continuous workers’ compensation coverage from the date of departure, and remained so at the time of the injury Cf. Kelly v. Mile Hi Single Ply, Inc., 873 P.2d 13 (Colo.App. 1993).
Neither was the ALJ required to find the claimant’s travel status had ended by the date of the accident simply because the claimant contemplated becoming a Colorado resident. Although the claimant’s testimony was somewhat contradictory and subject to conflicting inferences, he did testify that he considered himself a Louisiana resident on the date of the accident and his intention to stay in Colorado was contingent on the availability of steady work. Further, the claimant maintained his mailing address in Louisiana at the time of the injury. (Tr. April 11, 2002, P. 36; Tr. June 12, 2002, Pp. 8, 14). Moreover, at the time of the injury the claimant had been in Colorado for only one month and was residing in a motel paid for by ACS. Under these circumstances, we may not interfere with the ALJ’s resolution of the conflicts in the claimant’s testimony and the inferences drawn from that testimony.
We note the transcript of the hearing abruptly ends at the beginning of the cross- examination of witness Richardson. (Tr. June 12, 2002, P. 93). Further, page 46 of the June 12 transcript is missing. However, no party has complained that the transcript is insufficient to support appellate review, and the recorded testimony is fully sufficient to support the contested portion of the ALJ’s order. Under these circumstances, we perceive no error sufficient to warrant a remand for additional evidence. See Goodwill Industries v. Industrial Claim Appeals Office, 862 P.2d 1042, 1046 (Colo.App. 1993).
IT IS THEREFORE ORDERED that the ALJ’s order dated August 15, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
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 Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed May 21, 2003 to the following parties:
Billy Shepard, 14590 E. 2nd Ave., #B307, Aurora, CO 80011
ACS n/k/a Argus Contracting, c/o Lorraine Maxwell, IREX Contracting Group, P. O. Box 1268, Lancaster, PA 17608
Colorado Environmental Labor Broker Services, LLC, 3837 Ulloa St., New Orleans, LA 70065
Constitution State Services, c/o Lorraine Maxwell, IREX Contracting Group, P. O. Box 1268, Lancaster, PA 17608
Scott J. Mikulecky, Esq., 90 S. Cascade Ave., #1500, Colorado Springs, CO 80903 (For Claimant)
Douglas J. Kotarek, Esq., 40 Inverness Drive East, Englewood, CO 80112 (For Respondents ACS n/k/a Argus Contracting and Constitution State Services)
Sean K. Dotson, Esq., 10200 E. Girard Ave., Bldg. C, #145, Denver, CO 80231 (For Respondent Colorado Environmental Labor Broker Services, LLC)
By: A. Hurtado