Opinion
W.C. No. 4-589-973.
March 17, 2006.
FINAL ORDER
The respondents seek review of orders dated November 17, 2004 and October 7, 2005 of Administrative Law Judge Felter (ALJ). The respondents argue, inter alia, that the ALJ erroneously found the claimant sustained a compensable injury arising out of the course and scope of her employment. We agree and, therefore, set aside the orders.
The respondents jointly owned a vacation home, called Columbine Cabin. Columbine Cabin was not the principal residence of any of the respondents but it qualified as another residence that the respondents used for recreational purposes. The respondents were the "owners or occupants" of "qualified real property" under § 8-41-402(1) C.R.S. 2005.
The claimant was a regular employee of Fairfield Properties in Durango. The claimant also became a caretaker for Columbine Cabin. As consideration for being the caretaker, the claimant was furnished, rent-free, living quarters on the top floor of the Columbine Cabin. She had her own dining and bathroom facilities, separate and independent of the other bathrooms and kitchen facilities used by the guests.
The respondents did not insure their liability for workers' compensation, taking the position that caretakers at Columbine Cabin were "tenants" and not "employees." The claimant signed a document with the respondents, which set forth her responsibilities. The document, in part, states that the claimant would be responsible for residing in the apartment; maintaining security of the home; informing the owners of planned absences longer than overnight; directing any maintenance repairs; acting as a host to greet and welcome guests; providing general cleaning and periodic deep cleaning; performing routine grounds maintenance and maintaining hot water tanks, sauna, fireplaces and other mechanical equipment. The claimant worked approximately two to three hours every day. Consistent with her duties, she would check for leaks and do general housecleaning.
The claimant kept a bonsai plant in her own separate living quarters upstairs in the Columbine Cabin. At about the time of the claimant's injury, the bonsai plant needed repotting and fresh soil. On the date of the injury the claimant was in the greenhouse at the Columbine Cabin doing the repotting of her plant. She left the greenhouse in order to discard the old soil from the bonsai plant outside and, on her way, fell down stairs on the outside of the Columbine Cabin. The respondents did not file an employer's first report of injury at any time. The claimant did not file a workers' claim for compensation until September 9, 2003, more than three years after the accident of March 31, 2000.
The ALJ found that the claimant's fall while emptying soil from her personal bonsai was so interrelated to her job duties as the caretaker that it was within the course and scope of her work for the respondents. Specific Findings of Fact, Conclusions of Law and Order at 9, ¶ 34. On appeal the respondents argue that the claimant was injured while performing an activity that was solely for her own benefit and purposes, and so her injury was not compensable. We agree with the respondents.
In concluding that the claimant's injury was compensable, the ALJ relied upon In re Question Submitted by the United States Court of Appeals for the Tenth Circuit, 759 P.2d 17 (Colo. 1998). In that opinion the court noted that Colorado 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. Under the positional risk test, the fact finder 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.
Under the positional-risk test, it is necessary to determine whether the claimant's injury "arose out of" her employment as a caretaker at the Columbine Cabin. We agree that as caretaker the claimant was under the agreement responsible for providing some general cleaning. (Exhibit 1). However, we disagree with the ALJ that the "positional risk" analysis is applicable to the facts of this case. We have previously stated of this test that "in most formulations of the doctrine, the courts require proof that but-for the obligations of employment the claimant would not have been in the particular place at the particular time when he was injured by a `neutral force,' meaning a force which was neither personal to the claimant nor distinctly associated with the employment." Rice v. Dayton Hudson Corporation/Target Stores, W.C. No. 4-386-678 (July 29, 1999) (unexplained fall not subject to the positional risk analysis) (citations omitted). The "positional risk" doctrine is most often applied to assault cases, and to injuries which resulted from stray bullets, roving lunatics, drunks, assaults by mistake and completely unexplained attacks. In Re Questions Submitted by the U.S. Court of Appeals, 759 P.2d 17. In such circumstances, the force is neutral because any person then and there present would have been assaulted. In Re Questions Submitted by U.S. Court of Appeals, 759 P.2d at 22.
The ALJ found that the claimant was in the middle of cleaning up the cabin and tidied up her own apartment to some extent by throwing away the dirt from her bonsai tree. While the ALJ noted that she was not strictly required to so this for her employer he found it was incidental to her employment. The ALJ found that had the claimant not been otherwise preparing the house for guests, she likely would not have been at the house at all, and rather at her other job at Fairfield. Specific Findings of Fact, Conclusions of Law and Order at 8, ¶ 28. Therefore, the ALJ found her employment placed her in the "positional risk" of injury. Specific Findings of Fact, Conclusions of Law and Order at 16, ¶ r.
In our opinion the positional risk doctrine does not apply to these facts. The claimant's employment did not reasonably require her to be at the particular place and at the particular time when she fell while changing the soil in her plant. Rather, the undisputed evidence was that the claimant was tending to her own plant on her own time. The evidence presented by the claimant was that the cabin was clean but she liked to do a little touch-up and had basically finished that, and she owned a small bonsai tree and decided to change the soil, a chore she performed about once a year. Tr. at 16.
It is true, as found by the ALJ, that "but for" the employment with respondents the claimant would likely not have been at the cabin. However, as the court in Horodyskyj v. Karanian, 32 P.3d 470, 476 (Colo 2001) noted, this reasoning is unsound, "because it broadens the scope of coverage under the Act by eliminating the causality requirement needed for an injury to arise out of the employment." Id., 32 P.3d at 476. As the court explained, the test is improperly framed as "but for the bare existence of the employment." Rather, the correct test is "but for the conditions and obligations of the employment." Id. Here, the claimant had finished cleaning the cabin and was free to engage in whatever activity she choose. She chose to work on her own bonsai tree. The claimant admitted that the activity of repotting her bonsai had nothing to do with her responsibilities as the caretaker. Tr. 36. She was not engaged in any activity implicating the conditions and obligations of her employment, and it is therefore erroneous to conclude that "but for" those conditions and obligations she would not have been engaged in the activity leading to her injury. The claimant was outside the course of her employment. Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991). In Horodyskyj the court reaffirmed that an analysis of compensability must include the "causality requirement needed for an injury to arise out of the employment." Hence, because the positional risk analysis is inappropriate, the claimant was required to establish that her injury arose out of her employment. In our view she failed to make this showing.
The ALJ also relied heavily on Price v. ICAO, 919 P.2d 207 (Colo. 1996), and concluded that the claim was compensable under the analysis set forth in that case. The ALJ noted that the claimant was injured during work hours, that she was injured at her place of employment, that the respondents initiated her conduct that caused the injury and that the claimant's activity in cleaning the soil from the bonsai plant benefited the respondents. Specific Findings of Fact, Conclusions of Law and Order at 16-17, ¶ r-w. However, we disagree that Price is applicable to this case. Price dealt with the question whether an injury sustained during an exercise program was compensable, and set forth the test applicable to that determination. It is true that in Price a particularly strong indicator of whether an injury arose out of and in the course of employees' employment is whether the injury occurred on the employer's premises. And, in the present case the claimant was injured at the Columbine Cabin which is certainly owned by the respondents. However, as the respondents argue, the Columbine Cabin was at the same time the home of the claimant. In our opinion, since the claimant was a resident at the Columbine Cabin as well as an employee, some further analysis is necessary.
In Game and Fish Dept. v. Pardoe, 147 Colo. 363, 363 P.2d 106 (1961), the court addressed the issue of resident employees. The claimant in Game and Fish Dept. was found to be a "resident employee" and "on call" twenty-four hours a day, seven days a week. The court found the claimant at the time of the fatal accident was "on duty" in the sense that he was `on call,' and so the accident was compensable. The court went on to cite with approval the approach to analysis of this type of case found in Larson Workmen's Compensation Law, § 24. In the current text it is provided in § 24.01 as follows:
Injuries to employees required to live on the premises are generally compensable if one of the two following features is present: either the claimant was continuously on call, or the source of injury was a risk distinctly associated with the conditions under which the claimant lived because of the requirement of remaining on the premises.
In the present case the claimant was obliged to reside in the Columbine Cabin as a condition of the agreement entered into by the parties. However, the record is undisputed that the claimant was not continuously on call. At the same time she was a caretaker for the respondents she worked concurrently at Fairfield Resort, five days a week, six to seven hours a day. Therefore, the first feature under the analysis above, which might otherwise serve to make the claim compensable is absent. Regarding the second feature of the analysis above, in our opinion, the source of the injury, changing the soil of the bonsai tree, was not a risk distinctly associated with the conditions under which the claimant lived because of the requirement of remaining on the premises. The case of State Compensation Ins. Fund v. Industrial Commission, 98 Colo. 563, 58 P.2d 759 (1936), is an example of where the causal connection between the requirement of residence and the risk itself was met when a bunk house burned down and the worker was injured.
We find no substantial evidence to support the ALJ's finding that the claimant's activity in changing the soil on the bonsai tree would have benefited the respondents. The decision to change the soil was a matter of personal choice, and not the product of the employment relationship or its incidents. We find no evidence that old soil in the bonsai, as found by the ALJ, would cause odors to permeate through the rest of Columbine Cabin from the claimant's apartment. Specific Findings of Fact, Conclusions of Law and Order at 9, ¶ 33. Nor was there any evidence that the claimant would need to keep her apartment clean so the respondents would be able to show a new caretaker a clean apartment in which they are to live instead of a "pigsty," which would be an inducement to a hypothetical replacement caretaker if the claimant were to leave the service of respondents. Specific Findings of Fact, Conclusions of Law and Order at 9, ¶ 33. It follows that we reject the ALJ's conclusion that the claimant's activity when injured was "incidental" to her employment. Here the cause of the claimant's injury was a personal act. Because we conclude that the claimant did not establish that the injury arose out of and in the course of her employment it is unnecessary to address the remaining issues.
IT IS THEREFORE ORDERED that the ALJ's orders dated November 17, 2004 and October 7, 2005, are reversed and the claim is dismissed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Curt Kriksciun
____________________________________ Thomas Schrant
Jacquelyn Wolfe, Tonto Basin, AZ, Fred Quinn, Midwest City, OK, Dr. Bill Bernhardt, Midwest City, OK, Sam Wells, Port Orange, FL, Elliot L. Bloodsworth, Esq., Durango, CO, (For Claimant).
Thomas W. Blake, Esq., Grand Junction, CO, (For Respondents).