Pacesetter Corp. v. Collett5/10/2001
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Next, claimant argues that the ALJ erred in finding that his injuries were not compensable because they occurred while he was engaged in a personal deviation. Again, we disagree.
In most cases, an employee who is away from home on business remains under continuous workers' compensation coverage from the time of departure until the return home. Silver Engineering Works, Inc. v. Simmons, 180 Colo. 309, 505 P.2d 966 (1973). Pursuant to this rule, the risks associated with the necessities of eating, sleeping, and ministering to personal needs while away from home are considered incidental to, and within the scope of, the traveling employee's employment. Phillips Contracting, Inc. v. Hirst, 905 P.2d 9 (Colo. App. 1995).
However, if the employee makes a distinct departure on a personal errand, coverage will cease and will not be restored until the errand has been completed. Pat's Power Tongs, Inc. v. Miller, 172 Colo. 541, 474 P.2d 613 (1970); Wild West Radio, Inc. v. Industrial Claim Appeals Office, 905 P.2d 6 (Colo. App. 1995).
The burden is on the employer to show that the employee made a distinct departure from the scope of employment while on travel status. Upchurch v. Industrial Commission, 703 P.2d 628 (Colo. App. 1985). However, whether an employee has returned to the scope of employment after a personal excursion is an issue of fact, with the burden of proof placed on the claimant. Wild West Radio, Inc. v. Industrial Claim Appeals Office, supra.
We agree with the Panel that the evidence supported the ALJ's conclusion that claimant deviated on a personal errand and that such deviation did not end prior to the accident. Claimant testified that on Sunday, February 14, 1999, the date of the accident, he and his assistant sales manager met in the motel lounge for drinks after making some sales calls. Claimant stated that he was in the lounge one to two hours before he left to make "cold calls."
The accident occurred between 8 p.m. and 10 p.m., and toxicology reports indicated claimant's blood alcohol level was .251. Expert evidence introduced by employer equated claimant's blood alcohol level, based upon his height and weight, to consumption of nine regular beers or eleven shots of alcohol. The police report also estimated that claimant was driving 90 miles per hour at the time of the accident.
Based upon the extent of claimant's intoxication and the circumstances of the accident, the ALJ inferred that claimant continued to drink after he left the motel . Although the testimony of a co-worker substantiated the events at the motel prior to claimant's departure, including his intent to make "cold calls," neither the co-worker nor claimant could recall how many drinks claimant had prior to leaving. The co-worker testified, however, that claimant did not appear intoxicated when he left the lounge at approximately 7 p.m. Further, an assistant sales manager for employer testified that, under ordinary company practice, it would be highly unusual for a sales representative to make "cold calls" on a Sunday evening, particularly in an unfamiliar town.
In view of this evidence, we conclude, as did the Panel, that the ALJ's inference that claimant continued to drink was both logical and reasonable. We also agree with the Panel that in some circumstances the act of consuming alcohol, by itself, can constitute a personal deviation sufficient to remove the claimant from the scope of employment. See Phillips Contracting, Inc. v. Hirst, supra (when a personal deviation is asserted, the issue is whether the activity giving rise to the injury, such as stopping at a bar, constitutes a deviation from employment so substantial as to remove the c
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