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Schutter v. Outsource International/Tandem Staffing, W. C. No. 4-520-338 (2002).
Industrial Claim Appeals Office
Order of Remand
Mr. Simon can secure the benefits his clients are entitled to through diverse legal strategies and avenues. One avenue that is particularly difficult, but is often the only remedy available, is through an appeal of an administrative law judge (ALJ) ruling that denies his clients benefits or medical care. One example of a hard-fought appellate win for Mr. Simon was the claim of Berlinda Schutter.
Ms. Schutter was employed at Tandem Staffing (Tandem), a temporary services agency. Ms. Schutter, who did not have a driver’s license, took public transportation to the Tandem offices early each morning to see if work available. If work was available, Ms. Schutter was assigned a remote work location for the day, and had the option to either take public transportation for free or ride with a fellow employee or company van for a $1.00 charge each way.
On the morning of October 24, 2001, Ms. Schutter was assigned to work at remote work location and chose to ride with another employee to the work site. Unfortunately, Ms. Schutter was injured in an automobile accident during the commute between Tandem’s office and the remote work location.
After the accident, Ms. Schutter hired Mr. Simon to represent her in the workers’ compensation system. At hearing, the ALJ concluded that Ms. Schutter participated in a “ridesharing” agreement, and therefore was not an employee of Tandem when the accident occurred. Further, the ALJ held that Ms. Schutter’s injuries did not arise out of and in course of her employment because: they did not arise on the premises on Tandem, Ms. Schutter’s travel was not contemplated in the employment contract, and the employment did not create a zone of special danger.
Mr. Simon timely appealed the order and argued that Ms. Schutter traveled at the express or implied request of her employer, not as part of a ridesharing agreement. Therefore, Mr. Simon concluded that Ms. Schutter’s injuries were compensable.
On review, the Industrial Claim Appeals Office (the Panel) first addressed whether Ms. Schutter was engaged in ridesharing as defined in 10-4-707.5(2), C.R.S. If Ms. Schutter was involved in ridesharing, then she would be outside the scope of employment of Tandem. However, the Panel found that ridesharing did not include travel by an employee away from its business at the employer’s direction. Unlike the “ridesharing” cases cited by Tandem where an employee was returning home from a remote work site, Ms. Schutter was not in route to her home, but rather to a place of business at the direction of Tandem. Therefore, the Panel held that Ms. Schutter was not engaged in a ridesharing arrangement.
Next, the Panel reviewed whether Ms. Schutter’s injuries arose out of and in the course of her employment. The ALJ based his conclusion that the injuries did not arise out of and in the course of Ms. Schutter’s employment by reliance on his interpretation of four variables set forth in Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). Of particular importance, the Madden court stated that when travel confers benefit to the employer beyond the employee’s arrival at work, the travel has been expressly or impliedly requested by the employer, even without compensation for the employee.
The circumstances of this case, mainly that the Tandem vans were already on the road, Tandem needed an employee at the remote location, and the designation of an employee as a driver, conflicted with the ALJ’s employment contemplation finding. Therefore, the Panel remanded the decision of the ALJ with instruction to make specific findings of fact regarding whether Ms. Schutter’s employment contract contemplated travel.
The ultimate outcome of the case after remand was a victory for Ms. Schutter and receipt of the medical benefits she deserved (See Final Order, Schutter, W. C. No. 4-520-338 (2003).