Skywest Airlines, Inc. v. Indus. Claim Appeals Office of Colo.

• Decision Date: 27 August 2020
• Citation: Skywest Airlines, Inc. v. Indus. Claim Appeals Office of Colo., 487 P.3d 1267 (Colo. App. 2020)
• Docket Number: 19CA1783
• Parties: SKYWEST AIRLINES, INC. and Indemnity Insurance Company of North America, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado, Luis Ordonez Gamez, Alayan Ordonez, Evan Ordonez, minor child, and Elija Ordonez, minor child, Respondents.
• Court: Colorado Court of Appeals

487 P.3d 1267

SKYWEST AIRLINES, INC. and Indemnity Insurance Company of North America, Petitioners,

v.INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado, Luis Ordonez Gamez, Alayan Ordonez, Evan Ordonez, minor child, and Elija Ordonez, minor child, Respondents.

Court of Appeals No. 19CA1783

Colorado Court of Appeals, Division VII.

Announced August 27, 2020

Lee & Brown LLC, Joshua D. Brown, William M. Sterck, Kristi M. Robarge, Denver, Colorado, for PetitionersSkyWest Airlines, Inc. and Indemnity Insurance Company of North America

No Appearance for Respondent Industrial Claim Appeals Office

The Sawaya Law Firm, Katherine McClure, Denver, for RespondentsLuis Ordonez Gamez, Alayan Ordonez, Evan Ordonez, and Elija Ordonez

Opinion by JUDGE BROWN

¶ 1 In this workers’ compensation case, we must determine whether the Industrial Claim Appeals Office(Panel) erred by reversing the decision of an administrative law judge (ALJ) regarding whether a decedent had returned to the course and scope of employment from a personal deviation at the time of his fatal accident.The ALJ found that decedent's deviation from travel status had not ended because he was intoxicated and had neither returned to nor appeared to be en route to his hotel.But the Panel concluded, based on the ALJ's factual findings, that decedent's deviation ended when he attempted to return to a coworker's hotel.We affirm the Panel's decision ruling the claim compensable.

¶ 2We must also determine, as a matter of first impression, whether preservation of a second blood sample is required to limit a claimant's benefits due to an injured worker's intoxication under section 8-42-112.5, C.R.S. 2019.As relevant here, that statute imposes a 50% reduction in nonmedical benefits if the work-related accident resulted from the presence in the worker's system of a blood alcohol level exceeding 0.10 percent.Because a second sample of decedent's blood had not been preserved as mandated by section 8-42-112.5, the Panel determined that the employer could not take advantage of the 50% reduction in benefits.We affirm this ruling as well.

I.Background

¶ 3 Decedent, Luis Ordonez-Gamez, worked as a pilot for employer, SkyWest Airlines, Inc.¹He lived in California with his wife and two young children.In January and February 2018, he came to Denver for flight training.While training in Denver, decedent stayed at the SpringHill Suites, located at the southwestern intersection of 68th Avenue and Tower Road.

¶ 4 On February 14, 2018, decedent and his simulator partner, Baylee Ladner, took the difficult Initial Maneuvers Validation test from 6 p.m. to 10 p.m.After successfully completing the test, decedent and Ladner had dinner and "a couple of beers" at a nearby restaurant to celebrate.From the restaurant, they headed to a different establishment to continue drinking and celebrating.

¶ 5 At approximately 2 a.m. on February 15, 2018, decedent and Ladner stopped drinking alcohol, left the establishment, and returned to Ladner's hotel, the Fairfield Inn & Suites, located at the southwestern corner of 69th Avenue and Tower Road, one block north of and on the same side of Tower Road as the SpringHill Suites where decedent was staying.When they arrived at the Fairfield Inn, decedent approached the night desk attendant and asked her "to make his room key again because it wasn't working."The desk attendant informed decedent that the logo on his key referenced the SpringHill Suites and that he"wasn't at the right hotel."The desk attendant observed decedent "moving around a lot" and surmised he was intoxicated because "[h]e smelled like alcohol."After being told his room key would not work there, decedent proceeded to Ladner's room in the Fairfield Inn.

¶ 6 At about 5:30 a.m., decedent returned to the Fairfield Inn's front lobby and spoke with the same desk attendant.He again asked her for a new room key, and she reiterated that his key was for the SpringHill Suites "about two buildings over" from the Fairfield Inn.She testified that decedent still seemed inebriated and was struggling to put a lid on his coffee cup.The desk attendant turned to assist some other hotel guests and, after those guests left, she noticed that decedent "was gone."

¶ 7 A few minutes later, the desk attendant saw police lights outside.Decedent had left the Fairfield Inn, attempted to cross from the west side of Tower Road — where the Fairfield Inn, the SpringHill Suites, and SkyWest's training facility were located — to the east side, and had been struck by a vehicle traveling southbound on Tower Road.Decedent was transported to University of Colorado Hospital, where he received six units of blood and then had a blood sample taken which revealed a blood alcohol content (BAC) of 0.209 g/100ml.The parties stipulated that medical staff did not preserve a second blood sample.Decedent died later that morning at the hospital.

¶ 8 Decedent's widow, Alayan Ordonez, and children, Evan and Elija Ordonez(claimants) filed a claim for survivor benefits under the Workers’ Compensation Act of Colorado(Act), sections 8-42-114 and - 115, C.R.S. 2019.The matter proceeded to hearing before the ALJ in January 2019.

¶ 9 Based on the evidence, the ALJ found that

• decedent and Ladner "finished drinking" at approximately 2 a.m. on February 15, 2018;

• decedent was intoxicated when he was struck on Tower Road;

• because decedent was running away from his hotel and from SkyWest's training facility when he was struck, he was not returning to his hotel or to work; and

• no "persuasive evidence" supported claimants’ contention that decedent was simply confused when he attempted to cross Tower Road.

Relying on these factual findings, the ALJ concluded that decedent "was in a personal deviation at the time of the accident due to hours of consuming alcohol" and had not returned to travel status within the course and scope of his employment.The ALJ "denied and dismissed" the claim, finding it noncompensable.

¶ 10The Panel disagreed.It determined, based on the ALJ's factual findings, that "by the time decedent was involved in the collision, his personal deviation had ended."It noted that the ALJ found that decedent had stopped drinking about four hours before the accident, and that although he had not returned to his hotel room "he nevertheless had returned to lodging in Ladner's hotel room."The Panel rejected the ALJ's determination that because of decedent's "high level of intoxication,"he could not have been "within the course and scope [of his] ... position as a commercial airline pilot."Citing Wild West Radio, Inc. v. Industrial Claim Appeals Office , 905 P.2d 6(Colo. App.1995), the Panel noted that intoxication alone does not preclude compensation.

¶ 11 Finally, the Panel ruled that, to the extent the ALJ admitted toxicology results establishing that decedent's BAC was 0.209 just before his death to reduce claimants’ benefits under section 8-42-112.5, she erred.The Panel observed that, under the express language of section 8-42-112.5(1), a second blood sample "must be preserved."Because a second sample was not preserved, the toxicology results could not be used to reduce claimants’ benefits under the statute.

II.Deviation from Travel Status

¶ 12 SkyWest first argues that the Panel was bound by the ALJ's factual findings, particularly the ALJ's determination that decedent's personal deviation had not yet ended when the accident occurred.By reaching a different conclusion, it contends, the Panel improperly disregarded these findings, reweighed the evidence, and drew its own inferences from the facts.We disagree.

A.General Principles of Compensability

¶ 13 To receive workers’ compensation benefits, an injured worker must establish, by a preponderance of the evidence, that he has sustained a compensable injury or death "proximately caused by an injury ... arising out of and in the course of the employee's employment ...."§ 8-41-301(1)(c), C.R.S. 2019;seeFaulkner v. Indus. Claim Appeals Office , 12 P.3d 844, 846(Colo. App.2000).An injury "arises out of" employment when it has its origin in an employee's work-related functions and is sufficiently related to those functions to be considered part of the employee's employment contract.Horodyskyj v. Karanian , 32 P.3d 470, 475(Colo.2001).An injury occurs "in the course of" employment when it takes place within the time and place limits of the employment relationship and during an activity connected with the employee's job-related functions.Id.

B.Law Governing Travel Status

¶ 14 Injuries occurring while an employee is away from home or work for a business purpose may arise out of and be within the course of employment and thus be covered under the Act.As relevant here, under the "travel status" doctrine, "if the employee's job duties require travel[,] ... that travel is considered to be a part of the job, and any injury occurring during such travel will be compensable."Mountain W. Fabricators v. Madden , 958 P.2d 482, 484(Colo. App.1997), aff'd , 977 P.2d 861(Colo.1999).And "if the employee is sent away from home for an extended period to attend upon the employer's business, the employee will be considered to be in the course and scope of employment during virtually all of such period."Id.(citingAlexander Film Co. v. Indus. Comm'n , 136 Colo. 486, 492-93, 319 P.2d 1074, 1078(1957), which affirmed an award to an employee who died after being struck by a motor vehicle as he crossed the road separating the restaurant where he dined from his motel).The risks associated with the necessities of eating, sleeping, and ministering to personal needs away from home are considered incidental to and within the scope of a traveling employee's employment.

Phillips Contracting, Inc. v. Hirst , 905 P.2d 9, 12(Colo. App.1995);Staff Adm'rs, Inc. v. Indus. Claim Appeals Office , 958 P.2d 509, 511(Colo. App.1997), aff'd sub nom.Staff Adm'rs, Inc. v. Reynolds , 977...