W.C. No. 4-788-774.Industrial Claim Appeals Office.
January 27, 2010.
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FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated September 15, 2009, that determined the claim was compensable and ordered payment of certain benefits. We affirm.
The following findings of fact do not appear to be in dispute. The claimant worked as a clerk for the employer. The employer runs the parking at Denver International Airport (DIA). On March 27, 2009, the claimant “punched out” of work and took an employee shuttle to the Landside parking lot where she had parked her car. At the parking lot, she stepped off the shuttle, slipped, and fell in the parking lot. The claimant injured her left wrist. The parking lot was owned and maintained by the City and County of Denver. It was available for the use of employees of the City and County of Denver at DIA and its contractors, including the employer respondent. The parking lot was not available to the general public. The lot is shared with other employers who have employees at DIA. The ALJ found that the claimant suffered a compensable workers’ compensation injury on March 27, 2009 and awarded certain benefits.
On appeal, the respondents contend that the ALJ erred in compensating an injury suffered by the claimant while she was in the act of parking in a free parking lot, which respondents assert was not contemplated by the contract of employment. The respondents further contend that the ALJ erred in determining that parking in the lot was an “insignificant deviation” from the claimant’s assigned work duties such that an “injury” sustained during such “insignificant deviation” was compensable.
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We first note that contrary to the respondents’ assertion, here the ALJ specifically found that the free parking lot was contemplated by the contract of employment and was a normal incident of that employment. Because this issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009. 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. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999).
The respondents’ assertion notwithstanding, the record here fully supports the ALJ’s determination. The respondents’ Human Resource Administrator testified that one of the incentives the employer offers when hiring people is free parking. Tr. at 64-65. The claimant testified that she obtained her parking permit from the City of Denver by demonstrating that she worked for the employer. Tr. at 12-13. In our view, there is substantial evidence to support the ALJ’s determination that the free parking lot was contemplated by the contract of employment.
Next, we address the respondents’ argument concerning the use by the ALJ of the term “substantial deviation.” The ALJ did find that the claimant’s use of the Landside parking lot was not a “substantial deviation from her employment.” Finding of Fact 5 at 2. The respondents argue that the reasonable inference to be drawn from this phrase is that the ALJ held the injury occurred during a deviation and therefore the injury did not arise out of the course and performance of employment.
We do not read the ALJ’s order in that way. In our view, the ALJ’s use of the term deviation was not connected to some notion of deviation from “travel status.” Rather, reading the order as a whole we have no difficulty in concluding that the ALJ was addressing the issue of whether the injury occurred during an activity that had some connection with her job functions and was sufficiently incident to the conditions under which the employee usually performed her job. This leads us to the respondents’ essential argument.
The respondents contend that the claimant’s injuries did not arise out of and in the course of her employment. Section 8-41-301(1) C.R.S. 2009. The respondents assert that the employer did not operate or control the parking lot and did not assign the claimant to park in the Landside parking lot or direct her how to get to work. Under these circumstances, the respondents argue there is no causal relationship between the claimant’s employment and the slip and fall injury. Therefore, the respondents contend that the claimant’s injuries fall within the “going to and coming from” work rule and so cannot be compensated under the Act. We are not persuaded.
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In order for an injury to arise out of the employment, it is not necessary for the claimant to be performing an activity which constitutes a strict duty of the employment. Rather, an activity arises out of employment, and therefore establishes the requisite causal relationship between the employment and the injury, if the activity is reasonably incidental to the conditions and circumstances under which the claimant usually performs the work Price v. Industrial Claim Appeals Office, 919 P.2d 207, 210 (Colo. 1996); City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985).
It is true that injuries sustained while going to and from work do not arise out of employment because they lack a sufficient causal connection to the employment. Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). However, our courts have long recognized that accidents “occurring in or en route to parking lots maintained on its premises or provided by the employer for the benefits of employees, are compensable as arising out of and in the course of employment.” State Compensation Insurance Fund v. Walter, 143 Colo. 549, 354 P.2d 591, 593 (1960). There is no requirement that the parking lot be owned, maintained or operated by the claimant’s employer where the parking constitutes a “fringe benefit” to the employee. Woodruff World Travel, Inc. v. Industrial Commission, 38 Colo. App. 92, 554 P.2d 705 (1976).
The issue of whether the requisite causal connection has been established is one of fact for determination by the ALJ. In resolving the question, the ALJ must consider the totality of the circumstances. In re Question Submitted by United States Court of Appeals, 759 P.2d 17, 20 (Colo. 1988). As noted above, because the issue is factual in nature, we must uphold the ALJ’s resolution if supported by substantial evidence in the record. Section 8-43-301(8). 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. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).
Here, we perceive no legal or factual error in the ALJ’s determination that the injury arose out of the claimant’s employment. The ALJ made the following findings of fact with record support. The claimant obtained a free parking pass for the Landside parking lot from the City and County of Denver by showing an identification badge that identified her as an employee of the employer working at DIA. Tr. at 12-13, 22, 48. The claimant was provided access to the employee parking lot only as a result of showing an identification badge from the employer to the City and County of Denver. Tr. at 12-13, 22, 48, 65. The free parking was an inducement that the employer mentions to attract potential employees. Tr. at 50-51, 63-65. The lot was available for the use of employees of the City and County of Denver at DIA and its contractors, including the employer. Tr. at 25-29, 50-51. It was not available to the general public. Tr. 25-26, 47. The lot is shared with other employers who have employees at DIA. Tr. 29, 50-51. In addition, as
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found above there was substantial evidence to support the ALJ’s determination that the claimant’s use of the Landside parking lot was contemplated by the contract of employment and is a normal incident of the employment.
Under these circumstances, the ALJ could logically infer that use of the lot was an incident of the claimant’s employment because having parking available was one of the conditions under which she usually performed her work. Moreover, because the lot was not open to the public, it may logically be inferred that parking was a limited and special privilege of working for the employer Valles v. Link Staffing Services, W. C. No. 4-563-265 (February 27, 2004).
The respondents’ argument notwithstanding, we do not consider it decisive that the employer did not own, operate, or even necessarily know about the lot. In Woodruff World Travel, Inc. v. Industrial Commission, the court rejected a similar argument that the parking lot doctrine did not apply when the parking lot was neither owned, maintained by, nor subject to the employer’s control, and where the employer did not require the claimant to follow a particular route to and from her employment or to use her automobile and park in the lot.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 15, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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MISRAK NIGUSSIE, 19560 E 40TH DRIVE, DENVER, CO, 80249 (Claimant)
STANDARD PARKING CORP, 8400 PENA BLVD P O BOX 49200, DENVER, CO, 80249 (Employer)
ACE AMERICAN INSURANCE COMPANY, Attn: MR BRADEN COUNTRYMAN/LAURIE McGUIRE, C/O: ESIS PORTLAND CLAIMS, P O BOX 31082, TAMPA, FL, 33631-3082 (Insurer)
LAW OFFICES OF O’TOOLE SBARBARO, PC, Attn: JOHN SBARBARO, ESQ., 226 W TWELFTH AVENUE, DENVER, CO, 80204 (For Claimant)
CLIFTON, MUELLER BOVARNICK, PC, Attn: RICHARD BOVARNICK, ESQ., 789 SHERMAN STREET, SUITE 500, DENVER, CO, 80203 (For Respondents)
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