Turner v. Industrial Claim Appeals Office
Decision Date | 02 December 2004 |
Docket Number | No. 03CA1958.,03CA1958. |
Citation | 111 P.3d 534 |
Parties | Terry L. TURNER, Petitioner, v. INDUSTRIAL CLAIM APPEALS OFFICE OF the STATE OF COLORADO, Waste Management of Colorado, and Reliance National Indemnity, Respondents. |
Court | Colorado Court of Appeals |
Certiorari Denied May 23, 2005.1
Dawes and Harriss, P.C., Gail C. Harriss, Durango, Colorado, for Petitioner.
Ken Salazar, Attorney General, Y.E. Scott, Assistant Attorney General, Denver, Colorado, for Respondent Industrial Claim Appeals Office.
Treece, Alfrey, Musat & Bosworth, P.C., Kathleen M. Fairbanks, Denver, Colorado, for Respondents Waste Management of Colorado and Reliance National Indemnity.
Law Office of O'Toole & Sbarbaro, P.C., Neil D. O'Toole, Denver, Colorado, for Amicus Curiae Workers' Compensation Education Association.
Terry L. Turner (claimant) seeks review of a final order of the Industrial Claim Appeals Office (Panel) determining that an injury he sustained while driving home from a vocational rehabilitation evaluation requested by Waste Management of Colorado and its insurer, Reliance National Indemnity, Inc. (collectively employer), was not compensable under the quasi-course of employment doctrine. We set the order aside and remand for further proceedings.
The pertinent facts are undisputed. Claimant suffered admitted injuries to his neck and shoulder in 2000, and employer admitted liability for permanent partial disability based upon the division-sponsored independent medical examiner's opinion. Claimant objected and sought a hearing on additional medical and permanent disability benefits.
In defense of the claim, employer retained a vocational rehabilitation expert, and claimant traveled from Cortez to Durango, Colorado, to meet with that expert. On the return trip, while leaving the parking area of a restaurant following lunch, claimant suffered further injuries in an automobile accident.
The administrative law judge (ALJ) found that neither the restaurant stop nor the wrong turn constituted a deviation from the trip home. However, the ALJ concluded that, because employer did not have a contractual obligation to provide vocational rehabilitation, claimant was not in the quasi-course of employment. The Panel agreed, and this appeal followed.
Claimant contends that the ALJ and Panel erred as a matter of law in concluding that the further injuries were not compensable under the quasi-course of employment doctrine. Claimant argues that because he was required to attend a vocational rehabilitation evaluation once requested by employer, the injuries he suffered en route to a vocational evaluation, like injuries suffered en route to authorized medical care, should be compensated under the quasi-course of employment doctrine. We agree.
A noted treatise on the subject describes the quasi-course of employment doctrine as follows:
Work connection is a meld of two elements: arising out of employment, and arising in the course of employment .... This being so as to the initial compensable injury, it is not surprising that the question whether claimant's subsequent conduct is an independent intervening cause in these cases [aggravated injury] cannot be fairly determined by reference to conventional causation principles alone; it too must be determined by a test which is a combination of "course" and "arising out of" elements. Since, in the strict sense, none of the consequential injuries we are concerned with are in the course of employment, it becomes necessary to contrive a new concept, which we may for convenience call "quasi-course of employment." By this expression it [is] meant activities undertaken by the employee following upon his or her injury which, although they take place outside the time and space limits of the employment, and would not be considered employment activities for usual purposes, are nevertheless related to the employment in the sense that they are necessary or reasonable activities that would not have been undertaken but for the compensable injury. "Reasonable" at this point relates not to the method used, but to the category of activity itself.
1 Arthur Larson & Lex K. Larson, Larson's Workers' Compensation Law § 10.05, at 10-11 to -12 (2004); In re Question Submitted by U.S. Court of Appeals, 759 P.2d 17 (Colo.1988)("but for" test used to define the arising out of employment requirement in workers' compensation cases).
Under § 8-43-404(1), C.R.S.2004, a claimant is required to submit to a vocational evaluation provided and paid for by the employer. Benefits may be reduced, suspended, or barred if a claimant fails to submit to the evaluation. See § 8-43-404(3), C.R.S.2004. Also, if a disabled employee capable of rehabilitation refuses an offer of vocational rehabilitation paid for by the employer, he or she may not be awarded permanent total disability benefits. Section 8-42-111(3), C.R.S.2004.
The supreme court and divisions of this court have recognized the quasi-course of employment doctrine. See Travelers Ins. Co. v. Savio, 706 P.2d 1258 (Colo.1985)
; Jarosinski v. Indus. Claim Appeals Office, 62 P.3d 1082 (Colo.App.2002); Excel Corp. v. Indus. Claim Appeals Office, 860 P.2d 1393 (Colo.App.1993).
In Travelers Insurance Co. v. Savio, supra,
the insurer used the doctrine as a shield, arguing that the workers' compensation benefits precluded a bad faith claim against the insurer. The supreme court rejected that argument, stating that "a subsequent injury is compensable under the quasi-course of employment doctrine only if it is the `direct and natural' consequence of an original injury which itself was compensable." Travelers Ins. Co. v. Savio, supra, 706 P.2d at 1265. The court concluded that a bad faith breach of an insurance contract was not a "direct and natural" consequence of the compensable injury.
In Excel Corp. v. Industrial Claim Appeals Office, supra,
the claimant was injured in a slip-and-fall accident while leaving a physical therapy session, which was part of his authorized treatment for a compensable injury. The Panel concluded that the second injury was compensable because it was a natural and proximate result of the compensable injury. The division stated:
Excel Corp. v. Indus. Claim Appeals Office, supra, 860 P.2d at 1394-95 ( ).
In Jarosinski v. Industrial Claim Appeals Office, supra,
the claimant suffered an admitted head and neck injury following a fall. The claimant filed a petition to reopen about three months after she had been denied medical benefits, complaining that her condition had worsened and that she suffered from depression and visual problems. The ALJ concluded that any worsening of her condition resulted from the claim process, more particularly from her watching surveillance tapes of her apparently inconsistent and possibly fabricated complaints. A division of this court stated:
Jarosinski v. Indus. Claim Appeals Office, supra, 62 P.3d at 1086 (emphasis added; citations omitted); see also Huffman v. Koppers Co., 94 Md.App. 180, 616 A.2d 451 (1992)
(heart attack during deposition), aff'd, 330 Md. 296, 623 A.2d 1296 (1993); Hendrickson v. George Madsen Constr. Co., 281 N.W.2d 672 (Minn.1979)(heart attack during hearing); Douglas v. Spartan Mills, 245 S.C. 265, 140 S.E.2d 173 (1965)(claimant's injury in automobile accident en route to Industrial Commission hearing was in the course of direct, not quasi-employment).
Here, claimant was required, as a condition of pursuing permanent partial disability benefits, to submit to a vocational rehabilitation evaluation with a specialist of employer's choosing. The penalty for failing to undergo such an evaluation is a reduction, termination, or preclusion of permanent partial disability benefits. See §§ 8-42-111(3), 8-43-404(1), (3), C.R.S.2004. In addition, workers'...
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