Premises Liability

Under the “coming and going rule,” workers’ compensation claims are not compensable if a claimant is injured while going to or coming from work. Such travel is not considered to be “performance of services arising out of the course of employment.” The issue in Rose Vigil v. Healthcare Services Group, was whether the ALJ erred in finding that the injury sustained by Claimant while she was walking into work after being dropped off was compensable.   

In Vigil, Claimant worked as a housekeeper at Terrace Gardens for over four decades.  On February 18, 2019, Claimant was driven to work by her son and dropped off at the Terrace Gardens facility.  On that day, Claimant slipped on an icy sidewalk while walking to the entrance door and landed on her knees.  As a result of the fall, Claimant sustained injuries to her left leg.  Claimant was immediately taken to the ER, where it was found that she suffered a femur fracture.  On February 20, 2019, Claimant received orthopedic surgery to repair the fracture.  Claimant was then admitted to a care center from February 28 through April 5, 2019 to receive various forms of physical, speech, and occupational therapy.  Respondents alleged that Claimant’s injury was not work related. 

The ALJ found that special circumstances may exist which would demonstrate a causal connection between the circumstances under which work is performed and an off-premises injury. Such a causal connection would cause the resultant injury to arise out of and in the course of the employment. The ALJ explained that Claimant had arrived at Terrace Gardens, where she was not merely traveling to work but, instead, “had arrived on the premises where she was required to be as a term of her employment.”  The Claimant had not been traveling to work at the time of her injury but rather was on-premises of her workplace and utilizing its sidewalk and front entrance on her way to begin her shift.  The ALJ concluded that the risk faced by Claimant was reasonably incidental to the conditions and circumstances under which she was employed.  For that reason, the ALJ concluded that the injury sustained by Claimant while walking into work was compensable. 

The ALJ cited multiple cases in which compensability is found for injuries sustained while an employee is leaving work and walking through a parking lot. Additionally, the ALJ cited State Compensation Insurance Fund v. Walter, 354 P.2d 591 (1960), a Colorado Supreme Court case which held that injuries sustained while a claimant was crossing a public way to reach a parking lot owned and maintained by the employer was compensable. 

In considering evidence regarding Claimant’s injury and the applicable case law, the Industrial Claims Appeals Office did not find that ALJ abused its discretion in finding Claimant’s injury compensable. For that reason, the ALJ’s order was affirmed. 

Rose Vigil v. Healthcare Services Group, W.C. No. 5-100-792 (ICAO, June 10, 2020) 

Would you like to know more? Contact Michelle Prince at mprince@pollartmiller.com or 877-259-5693.

From the June 2020 Newsletter

2020-07-02T09:00:19+00:00