Younger v. City and County of Denver, 90SC249

• Decision Date: 06 May 1991
• Docket Number: No. 90SC249,90SC249
• Parties: Sandra J. YOUNGER, Petitioner, v. The CITY AND COUNTY OF DENVER, the Denver Police Department, the Industrial Claim Appeals Office of the State of Colorado, and the Director, Division of Labor, Respondents.
• Court: Colorado Supreme Court

Page 647

810 P.2d 647

8 A.L.R.5th 1023

Sandra J. YOUNGER, Petitioner, v. The CITY AND COUNTY OF DENVER, the Denver Police Department,

the Industrial Claim Appeals Office of the State

of Colorado, and the Director, Division

of Labor, Respondents.

No. 90SC249.

Supreme Court of Colorado,

En Banc.

May 6, 1991.

Gavend & Bryans, Richard B. Gavend, Denver, for petitioner.

Patricia L. Wells, City Atty., Geoffrey S. Wasson, Asst. City Atty., Denver, for respondents The City and County of Denver, and The Denver Police Dept.

Gale A. Norton, Atty. Gen., Raymond T. Slaughter, Chief Deputy Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Michael P. Serruto, Asst. Atty. Gen., for respondents The Industrial Claim Appeals Office and Director, Div. of Labor.

Justice VOLLACK delivered the Opinion of the Court.

We granted certiorari to review the decision by the court of appeals in Younger v. City and County of Denver, 796 P.2d 38 (Colo.App.1990), affirming the denial of workers' compensation benefits to claimant, Sandra J. Younger (Younger), for an injury sustained during a pre-employment physical agility test. We affirm.

I.

Younger was employed by the City and County of Denver as a communications clerk with the Denver Police Department, and had applied for an entry-level position as a police officer. Younger's job as a communications clerk and the job she sought as a police officer are governed by separate personnel systems within the City and County of Denver. One system, the Career Service Authority, covers Younger's position as a communications clerk, which is essentially a clerical position. The second personnel system, the Civil Service Commission, manages only employees in classified service, namely, police officers and firefighters.

To be considered for employment as a police officer, all applicants are required to pass a physical agility test, as well as a written test, a medical examination, a background check, and a polygraph examination. Successful completion of all of these tests does not, however, guarantee employment.

Younger passed the requisite written examination, and on September 8, 1986, which was Younger's regularly scheduled day off from work, she injured her knee while taking the physical agility test. The test required Younger to jump over a piece of duct tape on the floor from a squat position. While performing the exercise, Younger's foot caught on a piece of tape that was sticking up from the floor. She subsequently sustained an injury to her right knee, which required surgery and resulted in the loss of time and benefits from her employment.

Thereafter, Younger applied for workers' compensation benefits, which were denied. The administrative law judge (ALJ) found that Younger's job as a communications clerk within the Career Service Authority was "unrelated to and separate from the position she sought as a police officer," and rejected Younger's claim that her injury was compensable because it was incurred while she was pursuing a promotional opportunity. Thus, the ALJ concluded that Younger's injury during the pre-employment physical agility test did not arise out of and in the course of her employment as a communications clerk. The ALJ further concluded that, as an applicant for employment as a police officer, Younger was not an employee as defined under section 8-41-106(1)(a)(I)(A), 3B C.R.S. (1986), and was therefore not entitled to benefits.

The Industrial Claim Appeals Panel (Panel) affirmed the ALJ's order, and the court of appeals subsequently affirmed the final order of the Panel. Younger now seeks review of the court of appeals opinion.

II.

On appeal, Younger asserts two arguments: (1) that her status as an employee of the Denver Police Department entitled her to workers' compensation benefits during her tryout for another position within the Department; and (2) that, as a job applicant who was injured while performing a physical agility test required by a prospective employer, she is covered by the Workers' Compensation Act. We will address these issues in the order presented, keeping in mind that, as the claimant, Younger has the burden of establishing her right to benefits. See Orr v. Industrial Comm'n, 716 P.2d 1106, 1108 (Colo.1986).

A.

We first consider whether Younger, as a communications clerk for the Denver Police Department, was entitled to workers' compensation benefits for an injury sustained while applying for an entry-level police officer position. Resolution of this issue will depend on whether Younger's injury "arose out of and in the course of" her employment with the Denver Police Department pursuant to section 8-52-102, 3B C.R.S. (1986). ¹

The phrases "arising out of" and "in the course of" in section 8-52-102 are not synonymous, and the conjunctive condition requires the claimant to meet both requirements. In re Question Submitted by the United States Court of Appeals, 759 P.2d 17, 20 (Colo.1988); Industrial Comm'n v. London & Lancashire Indem. Co., 135 Colo. 372, 376, 311 P.2d 705, 707 (1957). The totality of the circumstances of each case must be considered in determining whether an injury arose out of and in the course of the employment. See Berry's Coffee Shop v. Palomba, 161 Colo. 369, 373, 423 P.2d 2, 4-5 (1967).

An injury "arises out of" employment when there is a causal connection between the employment and the injury. In re Question, 759 P.2d at 20. This court has adopted a positional-risk test, or "but for" standard, "to assess whether there is a sufficient relationship between the employment and the injury to justify compensation under the Act." Id. at 21. " 'An injury arises out of the employment if it would not have occurred but for the fact that the conditions and obligations of the employment placed claimant in the position where he was injured.' " Id. at 20 (emphasis in original) (quoting 1 Larson, Workmen's Compensation Law § 6.50, at 3-6 (1985) [hereinafter 1 Larson] ). Applying the positional-risk test, we must determine "whether the employee, in the course of her employment, was reasonably required to be at a particular place at a particular time and there met with a 'neutral force.' " Id. at 22. A neutral force is one that is neither personal to the injured employee, nor distinctly associated with the employment. Id. (citing 1 Larson § 6.50, at 3-6).

We must therefore apply the positional-risk test to determine whether Younger's knee injury "arose out of" her employment as a communications clerk with the Denver Police Department. As a police communications clerk, Younger was responsible for computer operation and answering telephone calls on the police department's regular phone lines and its 911 emergency lines. The undisputed facts show that Younger applied for an entry-level police officer position of her own volition and took the physical agility test on her regularly scheduled day off from her job as a communications clerk. Younger's employer neither requested nor encouraged Younger to pursue employment as a police officer, and offered her no compensation to do so. Moreover, if the physical agility test had fallen on one of Younger's regular work days, she would have been required to use either compensatory leave time or vacation time to take the test. Despite Younger's assertion that she was pursuing a promotional opportunity within the Denver Police Department, the evidence supports the Panel's conclusion to the contrary. Younger's position was encompassed within the Career Service Authority. Although a position as police officer may have increased her career potential, Younger nevertheless was not pursuing a promotional opportunity; rather, she was seeking an entry-level position within a completely separate personnel system managed by the Civil Service Commission.

Applying the positional-risk test, we find that Younger's employer did not require her to participate in the physical agility test during which she sustained her injury. Younger therefore failed to show that her employment required her to be at the particular place where the injury occurred. Younger's failure to demonstrate that she met the first element of the positional-risk test makes it unnecessary to consider the remaining time and "neutral force" elements of the test. We therefore conclude that Younger's injury did not arise out of her employment as a police communications clerk. By failing to meet the "arising out of" component mandated by section 8-52-102, Younger is not eligible for recovery pursuant to that section.

B.

We next consider whether Younger, as a job applicant who was injured while performing a physical agility test required by a prospective employer, is covered by the Workers' Compensation Act (the Act). To be entitled to workers' compensation benefits, a person must qualify as an employee under the statutory definition. Denver Truck Exch. v. Perryman, 134 Colo. 586, 595, 307 P.2d 805, 811 (1957); Loffland Bros. Co. v. Industrial Comm'n, 714 P.2d 509, 510 (Colo.App.1985). We must therefore determine whether Younger qualified as an employee within the Civil Service Commission (Commission) when she was injured while performing the physical agility test. The applicable statutory definition for the present case appears in section 8-41-106(1)(a)(I)(A), 3B C.R.S. (1986), of the Act, ² which defines an employee as:

Every person in the service of the state, or of any county, city, town, or irrigation, drainage, or school district or any other taxing district therein, or of any public institution or administrative board thereof under any appointment or contract of hire, express or implied; .... Policemen and firemen who are regularly employed shall be deemed employees within the meaning of this paragraph (a)....

(Emphasis added.)

The burden is on Younger to prove that she was a Civil Service employee when she was injured while taking the physical agility test as an applicant for an entry-level police officer position. See Hall v. State...