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Sturgeon Electric v. Industrial Claim Appeals Office of the State of Colorado7/14/2005
ORDER SET ASIDE AND CASE REMANDED WITH DIRECTIONS
Rothenberg and Russel, JJ., concur
Petitioners, Sturgeon Electric and Zurich Insurance Company (collectively Sturgeon), seek review of a final order of the Industrial Claim Appeals Office (Panel) determining that the consolidated claims filed by Kathleen and Marc Hafner, the wife and young son of the deceased employee, Mikel Hafner, and John Hafner, Mikel's adult son, were compensable. We set aside the Panel's order and remand for further proceedings.
On May 18, 2001, Mikel Hafner was driving to work from his Thornton home in his own truck with John as a passenger, when they were involved in an automobile accident. Mikel was killed, and John was injured. Mikel was a journeyman electrician and John was an apprentice electrician at the time of the accident. They were both union members employed under a collective bargaining agreement with Sturgeon at a jobsite located in Black Hawk. John sought workers' compensation benefits for his injuries and disability, while Kathleen and Marc sought death benefits.
In her initial decision, the administrative law judge (ALJ) determined that Kathleen, Marc, and John were not eligible for workers' compensation benefits because, at the time of the accident, Mikel and John were not performing services arising out of and in the course of their employment.
The ALJ found that Sturgeon paid a premium of $1.50 per hour for employees working at the Black Hawk project "to provide some incentive for electricians to travel out of the Denver metropolitan area for work in the mountains." She found that the premium was "unusual" and coincided with a "thin" labor pool. Additionally, the ALJ found that employees could use the premium as they saw fit and were not required to use it to pay their transportation expenses.
The ALJ further concluded that the employment contracts of Mikel and John with Sturgeon did not contemplate travel to and from work as part of their job functions. The ALJ then concluded that the claims were not compensable, because the travel of Mikel and John did not warrant a departure from the general "going to and coming from work rule," which provides that travel is not generally considered to be performance of services arising out of and in the course of employment. Finally, the ALJ concluded that "there was no persuasive showing that Mikel and John's commuting from Thornton to Black Hawk and back did much more for Sturgeon beyond their mere arrival at work."
Relying upon Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999), the Panel reversed the ALJ's order and remanded for further proceedings. The Panel concluded that the ALJ's finding that Mikel and John received a premium payment for travel compelled the legal conclusion that the contractual arrangement between Sturgeon on the one hand, and Mikel and John, on the other, singled travel out for special treatment so as to bring it within the course and scope of their employment.
On remand, the ALJ struck the findings and conclusions that were inconsistent with the Panel's determination that the claims of Mikel and John were compensable and awarded benefits. In particular, the ALJ deleted her initial finding that there was no persuasive showing that Mikel and John's commuting from Thornton to Black Hawk and back did much more for Sturgeon beyond their mere arrival at work. On review, the Panel affirmed.
Sturgeon contends that the Panel misapplied Madden in concluding that the receipt of a wage premium, without more, rendered compensable death and injuries resulting from the accident during the travel to work. We conclude that the case must be rem
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