Teller Cnty. v. Indus. Claim Appeals Office of Colo., Court of Appeals No. 14CA1757
| Decision Date | 23 April 2015 |
| Docket Number | Court of Appeals No. 14CA1757 |
| Citation | 410 P.3d 567 |
| Parties | TELLER COUNTY, Colorado, and Teller County WC Pool, Petitioners, v. INDUSTRIAL CLAIM APPEALS OFFICE of the State of Colorado and Michael Smith, Respondents. |
| Court | Colorado Court of Appeals |
Dworkin, Chambers, Williams, York, Benson & Evans, P.C., David J. Dworkin, Mary B. Pucelik, Denver, Colorado, for Petitioners
No Appearance for Respondent Industrial Claim Appeals Office
Wheelock Law, P.C., Cullen A. Wheelock, Gerald R. Blixt, Colorado Springs, Colorado, for Respondent Michael Smith
Opinion by JUDGE BOORAS
¶ 1 Teller County and the Teller County WC Pool challenge an award of workers' compensation benefits to Michael Smith, a volunteer with the Teller County Search and Rescue (TCSAR). We affirm.
¶ 2 Claimant, Michael Smith, is the president and the incident commander of TCSAR. He served TCSAR in other capacities for several years before his election as president. TCSAR is composed entirely of volunteers, including claimant, who receive no compensation for their service. TCSAR is on call at all times, and is under the jurisdiction of the Teller County Sheriff's Department. As president of TCSAR, claimant attends numerous meetings, including meetings of the fire chiefs, to prepare for disasters such as floods and fires.
¶ 3 On May 10, 2013, claimant left his home in Florissant to attend a fire chiefs meeting in Divide. Before departing, he contacted Teller County dispatch to "mark in service," thus notifying Teller County that he was en route to Divide for the fire chiefs meeting. As he was traveling to the meeting, he was struck head on by an approaching vehicle and sustained severe injuries.
¶ 4 He filed a claim for workers' compensation benefits, asserting that as a volunteer, he fell within the scope of the definition of "employee" set forth in section 8–40–202(1)(a)(I)(A), C.R.S.2014. Teller County contested the claim, however, arguing that the meeting claimant attended was not mandatory, and that he could not meet all of the statutory requirements necessary for a volunteer to be considered an employee under the Workers' Compensation Act (Act).
¶ 5 After conducting a hearing, the administrative law judge (ALJ) found that when the accident occurred claimant "was actively engaged in duties that would constitute activities that are ‘proper for the performance’ of duties with the search and rescue organization." In addition, the ALJ expressly found that claimant was the unit representative for a number of emergency response organizations, that he was "charged with coordinating assignments," and "attend[ed] meetings across Colorado." The ALJ further found that claimant's attendance at the meeting in question benefitted Teller County "by preparing the search and rescue organization to competently engage in search and rescue operations." Based on these findings, the ALJ concluded that claimant was an employee for purposes of section 8–40–202(1)(a)(I)(A), and therefore entitled to benefits.
¶ 6 Teller County petitioned for review, arguing that claimant's attendance at the meeting was volitional, not mandatory, and therefore should not be considered a sanctioned, covered activity. The Industrial Claim Appeals Office (Panel) disagreed, noting that it was "a custom and practice" in the county for the TCSAR president to attend the meetings. Consequently, the Panel concluded, claimant's attendance at the meeting was within the course and scope of his duties. The Panel therefore affirmed the ALJ's order.
¶ 7 Teller County contends that (1) claimant's actions did not fall within the statutory definition of "employee" because he was driving to a meeting—not "actually performing duties" or "engaged in" an organized drill or training—when the accident occurred; (2) the Panel's inclusion of "planning and preparation" activities under the definition of employee broadened the scope of the provision beyond the General Assembly's intent; (3) the Panel engaged in improper fact finding in affirming the ALJ's decision; and (4) claimant's claim should have been barred by the "coming and going" rule. We are not persuaded by these arguments to set aside the Panel's order.
¶ 8 The Act defines "employee" to include:
volunteer rescue teams or groups, volunteer disaster teams, volunteer ambulance teams or groups, and volunteer search teams in any county, city, town, municipality, or legally organized fire protection district or ambulance district in the state of Colorado ... while said persons are actually performing duties as volunteer firefighters or as members of such volunteer rescue teams or groups, volunteer disaster teams, volunteer ambulance teams or groups, or volunteer search teams ... and while engaged in organized drills, practice, or training necessary or proper for the performance of such duties.
¶ 9 We interpret statutory provisions de novo, and give " ‘considerable weight’ to the Panel's interpretation of the statute it administers." Zerba v. Dillon Cos., 2012 COA 78, ¶ 35, 292 P.3d 1051. We look first to the statute's plain language, giving that language its common meaning. People v. Jenkins, 2013 COA 76, ¶ 12, 305 P.3d 420. If the language is clear and unambiguous, we look no further and enforce it as written. Id.
¶ 10 The plain meaning of the statute makes clear that "employee" includes volunteer firefighters and volunteer search and rescue workers in certain circumstances. At oral argument, Teller County conceded that, although the statute uses the conjunctive, the statutory requirements for inclusion as an "employee" are satisfied by either "actually performing duties" or being "engaged in organized drills, practice or training" when an accident occurs. See Waneka v. Clyncke, 134 P.3d 492, 494 (Colo.App.2005) (). We agree that volunteer firefighters and volunteer search and rescue workers are "employees" under the statute when they are actually performing duties or when engaged in organized drills, practice, or training.
¶ 11 Attending fire chief meetings was part of claimant's position and duties as president of TCSAR. As a commander with the Teller County Sheriff's Office acknowledged, coordinating with the fire chiefs is "important," as is coordination between TCSAR and the Sheriff's Office, and that lack of coordination and planning would lead to ineffective preparation and response.
¶ 12 Other cases involving volunteers have reached similar conclusions. In one case, a division of this court upheld the Industrial Commission's finding of compensability for injuries sustained by a search and rescue volunteer while traveling by private plane to a meeting. See Colo. Civil Air Patrol v. Hagans, 662 P.2d 194, 196 (Colo.App.1983). The division noted that the commander testified that the volunteers were on duty "from the time they leave home to attend a meeting until they return." Id. Thus, traveling to attend a meeting has satisfied the "actually performing duties" component.
¶ 13 We also reject Teller County's contention that claimant's accident should not be covered because he was acting alone and not as a member of a group or team when he was heading to the meeting. Teller County offers no case law authority for this interpretation of the statute, and we know of no circumstance in which a volunteer was denied benefits simply because no other volunteers were engaged in the same injury-causing activity. On the contrary, whether a volunteer's injuries have been compensable has rested on a determination of the nature of the activities, rather than the number of volunteer participants. See, e.g., Nw. Conejos Fire Prot. Dist. v. Indus. Comm'n, 39 Colo.App. 367, 369, 566 P.2d 717, 719 (1977) ().
¶ 14 Teller County argues that the Panel's reliance on Hagans is misplaced because the claimant in Hagans was required to attend the training meeting, whereas claimant here chose to attend the meeting without any direction from the Sheriff's Office. The Panel held that this distinction was inconsequential, though, because claimant had a custom and practice of attending these meetings as president of TCSAR.
¶ 15 Teller County argues that looking to custom and practice expands the statutory language of "performing duties" beyond its plain meaning. However, contrary to Teller County's contention, a custom and practice of engaging in a particular activity can be considered part of a volunteer's regular duties, and injury during such activities can be compensable. Following decisions from other jurisdictions, a division of this court observed that "as a result of custom and practice, other activities, such as participation in patriotic celebrations, have become part of the normal activities of volunteer fire departments, and when injuries have occurred in the course of these activities, compensation has been allowed." Nw. Conejos Fire Prot. Dist., 39 Colo.App. at 369–70, 566 P.2d at 719–20 ().
¶ 16 Nor are we persuaded by Teller County's argument that covering volitional acts will deprive it of its right to determine who is an employee. An agency can acquiesce in the compensability of certain acts by knowingly permitting them to occur. For example, in Capano v. Bound Brook Relief Fire Co. # 4, 356 N.J.Super. 87, 811 A.2d 510 (N.J.Super.Ct.App.Div.2002), the court affirmed an award of benefits to a ninety-three-year-old volunteer firefighter who underwent hip replacement surgery after falling while putting a log in a...
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