Panera Bread v. Indus. Claim Appeals Office

• Decision Date: 13 July 2006
• Docket Number: No. 05CA1465.,05CA1465.
• Citation: 141 P.3d 970
• Parties: PANERA BREAD, LLC, and Sentry Insurance Company, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Julio Medina, Respondents.
• Court: Colorado Court of Appeals

141 P.3d 970

PANERA BREAD, LLC, and Sentry Insurance Company, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO and Julio Medina, Respondents.

No. 05CA1465.

Colorado Court of Appeals, Div. I.

July 13, 2006.

White and Steele, P.C., John M. Lebsack, Denver, Colorado, for Petitioners.

No Appearance for Respondent Industrial Claim Appeals Office.

Law Office of O'Toole & Sbarbaro, P.C., John A. Sbarbaro, Denver, Colorado, for Respondent Julio Medina.

Opinion by Judge MÁRQUEZ.

Panera Bread and its insurer, Sentry Insurance Company (collectively employer), seek review of a final order of the Industrial Claim Appeals Office (Panel) determining that an injury which occurred at the jobsite during horseplay was compensable. We affirm.

The findings of the administrative law judge (ALJ) can be summarized as follows. Julio Medina (claimant) was employed in a bakery, working in and around a cooler, and his duties involved moving bread racks. Because the floor of the bakery would become greasy, wet, and slippery, employer supplied workers with special shoes to counteract those conditions. On the day before the injury, claimant complained to the manager that his shoes were slippery.

Claimant was injured when, with a smirk on his face and without carrying a bread rack, he lifted his right leg as if he were going to kick a coworker, who was ten feet from the cooler and far enough away that he could not have been struck, and his left leg slipped out from under him. Claimant fell and sustained a sprained wrist and a hernia.

The ALJ found that horseplay had not become an accepted part of the employment and that claimant and his coworker had not previously engaged in any horseplay.

The ALJ applied the four-part balancing test enunciated in Lori's Family Dining, Inc. v. Industrial Claim Appeals Office, 907 P.2d 715 (Colo.App.1995), which was advocated in 2 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 23.01, at 232 (2005)(Larson's). The four-part test considers:

(1) the extent and seriousness of the deviation; (2) the completeness of the deviation, i.e., whether it was commingled with the performance of a duty or involved an abandonment of duty; (3) the extent to which the practice of horseplay had become an accepted part of the employment; and (4) the extent to which the nature of the employment may be expected to include some horseplay.

Lori's Family Dining, Inc., supra, 907 P.2d at 718.

The ALJ concluded that claimant's injuries were compensable because his actions did not constitute an extensive or serious deviation from his employment duties and he remained in the designated area to perform them. The ALJ also determined that claimant's injuries arose out of and in the course of employment from a combination of the slippery floor, his shoes, and his actions in attempting to kick toward his coworker. The ALJ distinguished Kater v. Industrial Commission, 728 P.2d 746 (Colo.App.1986), because the employee there made a complete deviation from the employment by dancing during a work break.

On review, the Panel characterized the issue as one of fact to be considered under the substantial evidence standard. It ruled that the ALJ was not required to conclude under the first two parts of the Lori's Family Dining test that claimant engaged in a substantial deviation from his employment and that nothing in Lori's Family Dining suggested that claimant must prove every element of the four-part test. The Panel affirmed the ALJ's determination as supported by substantial evidence.

I.

To obtain compensation for an injury, an injured employee must, at the time of injury, have been "performing service arising out of and in the course of the employee's employment." Section 8-41-301(1)(b), C.R.S. 2005. In workers' compensation law, the terms "in the course of" and "arising out of" are not synonymous. Popovich v. Irlando, 811 P.2d 379 (Colo.1991).

An injury or occupational disease "arises out of" employment when it has its origin in an employee's work-related functions and is sufficiently related thereto to be considered part of the employee's service to the employer in connection with the contract of employment. The "course of employment" requirement is satisfied when it is shown that the injury occurred within the time and place limits of the employment relation and during an activity that had some connection with the employee's job-related functions. Popovich v. Irlando, supra.

It is not essential to compensability that the activities of an employee emanate from an obligatory job function or result in some specific benefit to the employer, as long as they are sufficiently incidental to the work itself as to be properly considered as arising out of and in the course of employment. City of Boulder v. Streeb, 706 P.2d 786 (Colo. 1985).

To determine whether initiation of horseplay constituted a deviation from employment, we utilize the four-part test adopted by Lori's Family Dining, Inc., supra.

Professor Larson considers the issue of horseplay to be more concerned with the "course of employment" requirement than the "arising out of employment" issue, and has commented that there is "a general but mistaken tendency to assume that the latter is the principal issue." He explains:

Whenever the basic controversy stems from the nature of a course of conduct deliberately undertaken by the claimant, there is primarily a question of course of employment.

[However,] [w]henever the controversy stems from the nature of a source of the injury to the claimant, there is primarily a question of "arising out of the employment."

Larson's, supra, § 23.07[1], at 23-12 to -14 (emphasis in original). Lori's Family Dining, Inc., supra, is cited as a case demonstrating a minor deviation insufficient to remove the claimant from the course of employment. There, teasing escalated to a physical level when claimant's leg was caught and held as he kicked at a co-worker.

Under this approach, horseplay is analyzed under general principles that govern whether a claimant has deviated from employment so substantially as to remove him or her from the course of employment. When, as here, a particular act of horseplay, as opposed to the employment environment in general, is at issue, the act is to be judged...