SkyWest Airlines, Inc. v. Industrial Claim Appeals Office
2020 COA 131. No. 19CA1783. Workers’ Compensation—Scope of Employment—Personal Deviation—Travel Status Doctrine—Blood Sample.
August 27, 2020
Decedent worked as a pilot for SkyWest Airlines, Inc. (SkyWest). He lived in California but visited Denver for flight training and stayed at the Springhill Suites. After completing a difficult training test one evening, decedent and his simulator partner Ladner celebrated with dinner and drinks. At around 2 a.m. the following morning, decedent and Ladner stopped drinking and went to Ladner’s hotel, the Fairfield Inn & Suites, located one block north and on the same side of the road as Springhill Suites. Decedent told the night desk attendant his room key wasn’t working, and the attendant informed him the key was for the Springhill Suites. Based on decedent’s questions, movements, and the smell of alcohol, the attendant surmised he was intoxicated. Decedent went to Ladner’s room and fell asleep.
At about 5:30 a.m. decedent returned to the front lobby and spoke to the same attendant, again asking for a new room key. She testified he still seemed inebriated. Decedent left that hotel, attempted to cross the road, and was struck by a vehicle. A hospital blood sample revealed a BAC of 0.209g/100ml. Decedent died later that morning.
Decedent’s widow and children filed a claim for survivor benefits under the Workers’ Compensation Act of Colorado (Act). The parties stipulated that the medical staff did not preserve a second blood sample. At a hearing, the administrative law judge (ALJ) admitted the hospital’s blood sample toxicology results. The ALJ concluded that because decedent was heading away from his hotel and the training facility when he was struck, he was not returning to his hotel or to work, and he was in a personal deviation at the time of the accident. The ALJ denied and dismissed the claim as noncompensable.
A panel of the Industrial Claim Appeals Office (Panel) disagreed, determining that by the time of the accident, decedent’s personal deviation had ended. The Panel also held that under the express language of CRS § 8-42-112.5(1), a second blood sample must be preserved, and because a second sample was not preserved, the toxicology results could not be used to reduce claimants’ benefits under the statute.
On appeal, SkyWest argued that the Panel was bound by the ALJ’s factual findings, particularly the ALJ’s determination that decedent’s personal deviation had not yet ended when the accident occurred. Under the travel status doctrine, injuries occurring during travel that is part of a job are compensable. If an employee is sent away from home for an extended period to perform the employer’s business, the employee is considered to be in the course and scope of employment during virtually all of such period. However, an injury occurring while an employee is on a “personal deviation” is not compensable. A personal deviation occurs when the activity giving rise to the injury constitutes a deviation from employment so substantial as to remove it from the employment relationship. When a deviation ends is generally a question of fact for the ALJ’s determination, but that determination must be made within the bounds of existing case law.
Here, while decedent was heading away from his hotel when he ran across the road, this fact is not dispositive. The ALJ also found, with ample record support, that before the accident decedent and Ladner had stopped their celebratory activities and returned to lodging quarters for the night. The accident happened hours later. Under relevant case law and these facts, the deviation had ended before the accident, and an award to claimants is mandated.
SkyWest also argued that the Panel erred by concluding that an employer may only invoke the 50% intoxication penalty if there is a second blood sample preserved for review. CRS § 8-42-112.5 penalizes workers who are injured while intoxicated by reducing their nonmedical benefits by 50% if the work-related accident resulted from the presence in the worker’s system of a blood alcohol level exceeding 0.10%. The statute mandates a second blood sample before toxicology results can be admitted to justify the 50% penalty. Because a second sample was not preserved here, decedent’s toxicology results could not be admitted to impose a benefits reduction.
The Panel’s order was affirmed.
Workers’ Compensation, Scope of Employment, Personal Deviation, Travel Status Doctrine, Blood Sample