Coming and Going Rule and Sick Leave and Indemnity Benefits

ICAO held that the claimant, a police officer, driving his motorcycle through Denver to his home in Thornton satisfied at least one exception to the “coming-and-going” rule, as he was conferring a benefit upon his employer because the presence of the police vehicle and ability to respond quickly helped facilitate responsive police work. Moreover, ICAO determined claimant satisfied another exception to the “coming-and-going” rule because the claimant was contractually obligated to drive his motorcycle home.

Additionally, the employer paid three weeks of full wages under a wage continuation plan pursuant to §8-42-124(2) CRS for the time the claimant was off work and had charged this pay against his allowance of “sick time”.   The ALJ ruled the claimant was entitled to TTD for the three week period and ordered the respondent to restore the claimant’s sick leave and convert the wages paid to “work injury leave.”

Respondent appealed both aspects of the order.  The Panel affirmed the ALJ’s ruling regarding the coming and going ruled based on factors set forth in Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). Namely that travel by the claimant was “contemplated by the employment contract” and that the employer derived benefit from the claimant’s use of the motorcycle to travel to his home.

With respect to the sick leave, respondent argued that the ALJ did not have jurisdiction to order the respondent to restore to the claimant the sick leave attributed to the wages paid him by the employer during the three week disability period.  The Panel modified and affirmed the ALJ’s order.  The Panel noted that an employer that continues to pay an injured employee regular wages that are in excess of the amount of temporary benefits, will not be required to pay the employee any additional indemnity benefits due to the entitlement to temporary disability. See 8-42-124(2)(a) CRS.  However, once an employer has charged an employee with any earned sick leave for any reason pursuant to a wage continuation plan, the employee’s rights to temporary disability are reinstated under the Act.

Therefore, because the employer stated it paid the claimant his regular wages during the three week period and charged the claimant sick leave for the time period, the language of Section 8-42-124(2)(a) did not apply and the  employer must pay the claimant directly compensation in the amount of TTD under the formula set forth in the Act.

Barnes v. City and County of Denver, W.C. No. 5-003-724-04 (ICAO Aug. 25, 2017).

Would you like to know more? Contact Ilene Feldmeier at or 720.488.9586.


From the September 2017 Pollart Miller Newsletter