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Teller County v. Industrial Claim Appeals Office of the State of Colorado

Court of Appeals of Colorado, First Division

April 23, 2015

Teller County, Colorado, and Teller County WC Pool, Petitioners,
v.
Industrial Claim Appeals Office of the State of Colorado and Michael Smith, Respondents.

Court of Appeals No. 14CA1757 Industrial Claim Appeals Office of the State of Colorado WC No. 4-920-458

Dworkin, Chambers, Williams, York, Benson & Evans, P.C., David J. Dworkin, Mary B. Pucelik, Denver, Colorado, for Petitioners

No Appearance for Respondent Industrial Claim Appeals Office

Wheelock Law, P.C., Cullen A. Wheelock, Gerald R. Blixt, Colorado Springs, Colorado, for Respondent Michael Smith

OPINION

BOORAS JUDGE

¶ 1 Teller County and the Teller County WC Pool challenge an award of workers' compensation benefits to Michael Smith, a volunteer with the Teller County Search and Rescue (TCSAR). We affirm.

I. Background

¶ 2 Claimant, Michael Smith, is the president and the incident commander of TCSAR. He served TCSAR in other capacities for several years before his election as president. TCSAR is composed entirely of volunteers, including claimant, who receive no compensation for their service. TCSAR is on call at all times, and is under the jurisdiction of the Teller County Sheriff's Department. As president of TCSAR, claimant attends numerous meetings, including meetings of the fire chiefs, to prepare for disasters such as floods and fires.

¶ 3 On May 10, 2013, claimant left his home in Florissant to attend a fire chiefs meeting in Divide. Before departing, he contacted Teller County dispatch to "mark in service, " thus notifying Teller County that he was en route to Divide for the fire chiefs meeting. As he was traveling to the meeting, he was struck head on by an approaching vehicle and sustained severe injuries.

¶ 4 He filed a claim for workers' compensation benefits, asserting that as a volunteer, he fell within the scope of the definition of "employee" set forth in section 8-40-202(1)(a)(I)(A), C.R.S. 2014. Teller County contested the claim, however, arguing that the meeting claimant attended was not mandatory, and that he could not meet all of the statutory requirements necessary for a volunteer to be considered an employee under the Workers' Compensation Act (Act).

¶ 5 After conducting a hearing, the administrative law judge (ALJ) found that when the accident occurred claimant "was actively engaged in duties that would constitute activities that are 'proper for the performance' of duties with the search and rescue organization." In addition, the ALJ expressly found that claimant was the unit representative for a number of emergency response organizations, that he was "charged with coordinating assignments, " and "attend[ed] meetings across Colorado." The ALJ further found that claimant's attendance at the meeting in question benefitted Teller County "by preparing the search and rescue organization to competently engage in search and rescue operations." Based on these findings, the ALJ concluded that claimant was an employee for purposes of section 8-40-202(1)(a)(I)(A), and therefore entitled to benefits.

¶ 6 Teller County petitioned for review, arguing that claimant's attendance at the meeting was volitional, not mandatory, and therefore should not be considered a sanctioned, covered activity. The Industrial Claim Appeals Office (Panel) disagreed, noting that it was "a custom and practice" in the county for the TCSAR president to attend the meetings. Consequently, the Panel concluded, claimant's attendance at the meeting was within the course and scope of his duties. The Panel therefore affirmed the ALJ's order.

II. Analysis

¶ 7 Teller County contends that (1) claimant's actions did not fall within the statutory definition of "employee" because he was driving to a meeting - not "actually performing duties" or "engaged in" an organized drill or training - when the accident occurred; (2) the Panel's inclusion of "planning and preparation" activities under the definition of employee broadened the scope of the provision beyond the General Assembly's intent; (3) the Panel engaged in improper fact finding in affirming the ALJ's decision; and (4) claimant's claim should have been barred by the "coming and going" rule. We are not persuaded by these arguments to set aside the Panel's order.

A. Statutory Definition of Employee

¶ 8 The Act defines "employee" to include:

volunteer rescue teams or groups, volunteer disaster teams, volunteer ambulance teams or groups, and volunteer search teams in any county, city, town, municipality, or legally organized fire protection district or ambulance district in the state of Colorado . . . while said persons are actually performing duties as volunteer firefighters or as members of such volunteer rescue teams or groups, volunteer disaster teams, volunteer ambulance teams or groups, or volunteer search teams ...

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