Colorado has recognized a longstanding rule that injuries sustained by workers traveling to work from home (and while returning home), are not compensable because they are not seen as arising out of employment. In 1999 the Colorado Supreme Court recognized that the facts of any particular case may justify an exception to this general rule, and set forth four categories of evidence that may establish a travel injury to be an exception to the going and coming exclusion: (1) whether the travel occurred during working hours; (2) whether the travel occurred on or off the employer’s premises; (3) whether the travel was contemplated by the employment contract; and (4) whether the obligations or conditions of employment created a “zone of special danger” out of which the injury arose. Madden v. Mountain West Fabricators, 977 P.2nd 861 (Colo. 1999).
The Industrial Claim Appeals Office, building on other recent cases from the Court of Appeals and Industrial Claim Appeals Office, recently extended the rationale in Madden to find that all travel to and from work is compensable if an employee is ever required to use the employee’s personal vehicle in that employee’s performance of the job. Rieks v. On Assignment, Inc., W. C. No. 4-921-644-01 (August 12, 2014). In Rieks, the employment contract required Claimant to utilize his own vehicle to drive to marketing appointments with prospective and existing clients. The employee was traveling from his home to the “daily office meeting” at the employer’s premises (from which he would leave to attend his marketing appointments), when he was involved in a motor vehicle accident.
The employer denied liability based on the general rule that injuries sustained while going to and coming from work are not compensable. The Administrative Law Judge agreed, and dismissed the claim. The claimant appealed, arguing that because his employment contract required him to utilize his own vehicle to travel to appointments, the employment contract contemplated travel because the contract of employment required the claimant to transport his personal vehicle to the employer’s premises. Thus, the Industrial Claim Appeals Office found the injury compensable even though the employee’s workday did not start until he arrived at work for the daily office meeting, because “the claimant’s transport of his car to work was a benefit to the employer contemplated by the contract of hire.”
The decision of the Industrial Claim Appeals Office probably is a reasonable extension of the four categories of evidence that may establish a travel injury to be an exception to the going and coming exclusion as set forth by the Supreme Court in Madden. However, the application of the decision could extend far beyond situations where the employment contract required use of a motor vehicle. Employers should expect any employee that ever uses the employee’s own vehicle to travel anywhere for the employer to attempt to extend the Rieks decision in the event of any injury going to or coming from work. For example, where an employer condones an employee’s Friday-morning donut purchase for the office, or requests the employee occasionally to drive to the grocery store to pick up some supplies, that employee could argue that the travel to and from work was contemplated by the need to travel for the employer, even if only on infrequent occasions.