What constitutes a personal deviation while on “Travel Status” and second sample required to claim reduction in benefits due to intoxication

In Skywest, Decedent lived in California while working as a pilot for SkyWest Airlines. In January and February 2018, Decedent was in Denver for flight training during which, he stayed in a hotel. One day, after completing a training test, Decedent and his coworker had a celebratory dinner with drinks. Decedent and coworker continued to drink until about 2 a.m. and then returned to the coworker’s hotel. Coworker’s hotel was about one block north and on the same side of the road as Decedent’s hotel. Around 5:30 a.m., Defendant interacted with the front desk at coworker’s hotel. A staff member found Decedent to be visibly intoxicated, as he confused his coworker’s hotel for his own. When directed to his own hotel, Decedent left, tried to cross the road, was struck by a vehicle, and later died. Decedent was found to have a blood alcohol content (BAC) of .209g/100ml.

 

The Administrative Law Judge (“ALJ”) concluded that Decedent “was in a personal deviation at the time of the accident due to hours of consuming alcohol” and that he had not returned to travel status within the course and scope of his employment at the time of the accident. For that reason, the ALJ concluded the claim was not compensable. However, the Industrial Claim Appeals Office (“the Panel”) disagreed with the ALJ, finding that by the time the accident had occurred, Decedent’s personal deviation had ended. Specifically, the Panel noted that Decedent had stopped drinking about four hours prior to the accident, and although he had not returned to his own lodging, Decedent did return to his co-worker’s lodging. The Panel noted that intoxication alone does not preclude compensation, explaining that in order to reduce benefits under section 8-42-112.4(1), a second blood sample must be preserved, and that the hospital that took Decedent after the accident failed to preserve a second blood sample. For those reasons, the Panel found that Decedent was not precluded from workers’ compensation benefits and the toxicology results could not be used to reduce those benefits. Respondents appealed to the Colorado Court of Appeals (“the Court”). The Court affirmed the Panel’s decision.

In reviewing the Panel’s reversal, the Court further elaborated upon “travel status” and what merits a personal deviation while an employee is on travel status. Under travel status, injuries that occur when an employee is away from home or work for a business purpose may be compensable. The risks associated with eating, sleeping, and meeting personal needs away from home are considered incidental to and within the scope of a traveling employee’s employment. However, a traveling employee’s injuries may not be compensable if the employee engaged in a “personal deviation.”  The Court explained when determining whether an activity is a personal deviation, the deviation from employment must be so substantial that it removes the activity from the employment relationship. However, when the personal errand has concluded, the deviation ends and the employee is again covered for workers’ compensation.

 

In determining whether to uphold the Panel’s reversal of the ALJ’s decision, the Court referred to Pat’s Power Tongs v. Miller, 172 Colo. 541 (1970), which found that personal deviations conclude when an employee proceeds toward their lodging quarters for the night. The ALJ attempted to distinguish this case’s facts from Pat’s Power Tongs by stating Decedent’s crossing the street, as his hotel was not across the street, did not constitute proceeding towards his lodging quarters. The Court agreed that the decedent was moving away from his hotel at the time he was struck, but that he had already returned to lodging – although it was his coworkers’ room – to stay for some time, before he had left and crossed the street hours later. For that reason, the Court found that by returning to his co-worker’s hotel, there was proof that Decedent’s personal deviation had ended, and affirmed the Panel’s reversal of the ALJ’s order.

 

Additionally, the Court found that the toxicology report was inadmissible. C.R.S. 8-42-112.5 penalizes workers who are injured while intoxicated by reducing their benefits by 50% if certain conditions are met. One condition is that a second blood sample must be preserved and made available for testing against the BAC result of the first test in order to assert that 50% penalty. The Court agreed with the Panel that due to the lack of a second blood sample, the reduction of benefits would not be imposed upon the claim.

 

Therefore, due to the Decedent’s return to travel status by returning to lodging after a personal deviation before his fatal injury and the lack of a secondary blood sample, Decedent’s wife and children were not precluded from seeking workers’ compensation benefits.

Skywest v. Indus. Claim Appeals Office, 19CA1783 (Colo. Ct. App. July 23, 2020) 

Want to know more? Contact Brianna Tancher at btancher@pollartmiller.com or 877-259-5693.

October 2020 Newsletter

2020-11-05T16:10:13+00:00