88 Pueblo County v. Industrial Claim Appeals Office

COLORADO COURT OF APPEALS 2017COA74

Court of Appeals No. 16CA1388
Industrial Claim Appeals Office of the State of Colorado
WC No. 4-911-673

Pueblo County, Colorado; and County Technical Services, Inc.,

Petitioners,

v.

Industrial Claim Appeals Office of the State of Colorado; and Mary Rodriguez,

Respondents.

ORDER AFFIRMED

Division V
Opinion by JUDGE ROMÁN
Booras and Fox, JJ., concur

Announced May 18, 2017

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

No Appearance for Respondent Industrial Claim Appeals Office

Michael W. Seckar, P.C., Lawrence D. Saunders, Pueblo, Colorado, for
Respondent Mary Rodriguez
¶1 This appeal presents a workers’ compensation question of first

impression in Colorado. Is an injury sustained by a union officer

during attendance at a union meeting to review an employer’s

proposal for a new collective bargaining agreement compensable

under the Workers’ Compensation Act of Colorado (Act), sections

8-40-101 to 8-47-209, C.R.S. 2016? Applying the mutual benefit

doctrine, we conclude, in the context of this case, that the answer is

yes.

I. Background

¶2 Claimant, Mary Rodriguez, was the president of the local

union. She worked for Pueblo County (employer) in the Housing

and Human Services Department. Membership is required for

workers in a “bargaining unit” and union dues are deducted from

workers’ paychecks, but participation in meetings is voluntary.

¶3 On December 11, 2012, claimant stayed after work for a union

meeting. The meeting was held immediately after claimant clocked

out for the day and took place in a conference room in the building

in which she worked. Employer does not pay workers for the time

spent in union activities, but it makes conference rooms in county

buildings available for union meetings.

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¶4 The purpose of the meeting was to review and make any

necessary changes to the new collective bargaining agreement that

was being negotiated. No one in management attended the

meeting.

¶5 After the meeting ended, claimant walked to the adjacent

parking lot where she normally parked at work. Claimant opened

her car door, reached in to place a few items on the seat, turned

around to get into the car, and slipped on ice. She fell, hitting the

frame of the car door and injuring her shoulder, wrist, elbow, and

shin.

¶6 Claimant filed a workers’ compensation claim for her medical

expenses. An Administrative Law Judge (ALJ) denied and

dismissed the claim, concluding that claimant “was not in the

course and scope of her employment at the time of her injury.” In

doing so, the ALJ pointed out that “as a general rule, union

activities are personal and, therefore, if a worker is injured while

participating in a union meeting, the claim is not compensable.”

¶7 The Industrial Claim Appeals Office Panel (Panel) disagreed

with the ALJ, concluding that claimant’s union activities were

“sufficiently incidental” to her work “as to be properly considered as

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arising out of and in the course of employment.” The Panel also

stated that, “assuming arguendo, that the claimant was required to

prove a benefit to the employer . . . the claimant met that burden

here.”

¶8 Accordingly, the Panel determined that claimant’s injury

occurred in the course and scope of her employment and arose out

of her employment. It thus remanded the case to the ALJ to

determine claimant’s benefits.

¶9 On remand, the ALJ ordered employer to pay all of claimant’s

reasonable, necessary, and related medical treatment. The Panel

affirmed this order, reiterating its prior conclusions and analysis.

Employer now appeals to this court.

II. Arising Out of and In the Course of Employment

¶ 10 Employer contends that the Panel erred in holding that the

post-work injury sustained immediately following claimant’s

attendance at a union meeting arose out of and in the course of

employment. Under the facts of this case, we disagree.

¶ 11 In order for claimant’s injury to be compensable, it had to both

arise out of and in the course of her employment. “The ‘course of

employment’ requirement is satisfied when it is shown that the

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injury occurred within the time and place limits of the employment

relation and during an activity that had some connection with the

employee’s job-related functions.” Wild W. Radio, Inc. v. Indus.

Claim Appeals Office, 905 P.2d 6, 8 (Colo. App. 1995). An injury

arises out of employment when it has its origin in an employee’s

work-related functions and is sufficiently related to those functions

so as to be considered part of employment. It is not essential,

however, that an employee be engaged in an obligatory job function.

City of Brighton v. Rodriguez, 2014 CO 7, ¶ 17 (citation omitted).

III. Compensability of Injuries Occurring From Union Activities

¶ 12 Colorado’s appellate courts have not addressed whether a

post-work union meeting, in which an employee participated, arose

out of and in the course of employment, making an injury

compensable. A number of other states and authorities have,

however, addressed the compensability of injuries occurring in this

context.

¶ 13 As articulated by the principal treatise on workers’

compensation, Larson’s Workers’ Compensation Law, the general

rule provides that union activities are “exclusively for the personal

benefit of the employee, and devoid of any mutual

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employer-employee benefit that would bring it within the course of

employment.” 3 Arthur Larson & Lex K. Larson, Larson’s Workers’

Compensation Law § 27.04[3][a] (2015); see also Pac. Indem. Co. v.

Indus. Accident Comm’n, 81 P.2d 572, 575 (Cal. Dist. Ct. App. 1938)

(finding no coverage for injury sustained by employee during union

meeting held on employer’s premises because meeting was not “for

the benefit or in the furtherance of the employer’s work”); Spatafore

v. Yale Univ., 684 A.2d 1155, 1162 (Conn. 1996) (“Traditionally,

attendance at a union meeting was viewed as a benefit solely for the

employee with no concomitant benefit to the employer and therefore

did not fall within the course of employment.”); Tegels v.

Kaiser-Frazer Corp., 44 N.W.2d 880, 884 (Mich. 1950) (noting that

employee’s participation in union meeting at plant to elect shop

steward did not arise “out of and in the course of his employment”).

¶ 14 Today, it is still usually the case that injuries sustained during

“unilateral union activities conferring, if any, only a remote or

indirect benefit upon the employing enterprise” are not covered.

Mikkelsen v. N. L. Indus., 370 A.2d 5, 8 (N.J. 1977). Workers

therefore are unlikely to have coverage for injuries sustained while

walking the picket line or participating in a strike. See, e.g.,

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Fantasia v. Hess Oil & Chem. Corp., 265 A.2d 565, 567 (N.J. Super.

Ct. Law Div. 1970), aff’d, 273 A.2d 402 (N.J. Super. Ct. App. Div.

1971); Koger v. Greyhound Lines, Inc., 629 N.E.2d 492, 495 (Ohio

Ct. App. 1993); Universal Cyclops Steel Corp. v. Workmen’s Comp.

Appeal Bd., 305 A.2d 757, 764 (Pa. Commw. Ct. 1973).

¶ 15 The leading treatise, however, recognizes a trend toward

finding a mutual employer-employee benefit in the actions of union

officers: “It is being increasingly held . . . that an activity

undertaken by an employee in the capacity of union office may

simultaneously serve the interest of the employer [and the

employee].” Larson & Larson at § 27.03[3][c].

¶ 16 Under the mutual benefit doctrine, the court must examine

the circumstances of each case in determining whether a union

activity is of mutual benefit to the employer and employee.1 New

Eng. Tel. Co. v. Ames, 474 A.2d 571, 574 (N.H. 1984) (holding that

injury sustained when claimant hit knee on table during union

1 Claimant also asks us to assess these cases based on whether the
activities were “incidental to the employment.” We decline to do so,
because we agree with the New Hampshire Supreme Court that the
better analysis is to consider whether the union activity was of
mutual benefit to the employer and employee. New England Tel. Co.
v. Ames, 474 A.2d 571, 574 (N.H. 1984).

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negotiating session with employer compensable because “the

activity . . . was of mutual benefit to [the claimant and the

employer], and thus arose in the course of employment”); Salierno v.

Micro Stamping Co., 345 A.2d 342, 343, 345 (N.J. Super. Ct. App.

Div. 1975) (finding that heart attack which occurred “[s]hortly after”

employee participated in union negotiations compensable), aff’d,

370 A.2d 3 (N.J. 1977).

¶ 17 The facts of D’Alessio v. State, 509 A.2d 986 (R.I. 1986), are

even more analogous. There, the claimant, a union officer, attended

a union meeting in a conference room that the employer supplied

“specifically for the purpose of conducting these meetings.” Id. The

meeting was held three hours after the claimant had clocked out —

suggesting she was not paid for her time — and was called “to

discuss grievances to be submitted to their employer.” Id. Because

the meeting “served to facilitate ongoing negotiations with the

employer management by separating out gripes from legitimate

grievances,” the union meeting “was of mutual benefit to both the

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employer and the employee” and the injuries claimant sustained

during the meeting were compensable. Id. at 988.2

IV. Mutual Benefit Doctrine

¶ 18 Colorado too has applied the mutual benefit doctrine, albeit in

different contexts.3 See Berry’s Coffee Shop, Inc. v. Palomba, 161

Colo. 369, 375, 423 P.2d 2, 5 (1967) (“An injury suffered by an

employee while performing an act for the mutual benefit of the

employer and the employee is usually compensable, for when some

advantage to the employer results from the employee’s conduct, his

act cannot be regarded as purely personal and wholly unrelated to

the employment.” (quoting 99 C.J.S., Workmen’s Compensation

2 We disagree with employer’s assertion that there “is no precedent
for holding as the ICAO did that negotiations can take place at a
union meeting from which employer representatives are excluded.”
See, e.g., Mikkelson v. N.L. Indus., 370 A.2d 5, 9 (N.J. 1977);
D’Alessio v. State, 509 A.2d 986 (R.I. 1986); Ackley-Bell v. Seattle
Sch. Dist. No. 1, 940 P.2d 685, 690 (Wash. Ct. App. 1997).
3 The doctrine was originally labeled the dual purpose doctrine. See

Berry’s Coffee Shop, Inc. v. Palomba, 161 Colo. 369, 375, 423 P.2d
2, 5 (1967). But it is now referred to as the mutual benefit doctrine.
See Dunavin v. Monarch Recreation Corp., 812 P.2d 719, 720 (Colo.
App. 1991) (affirming denial of workers’ compensation benefits
because claimant’s “personal skiing activity” was not “an act for the
mutual benefit of him and his employer (within the ‘dual purpose’
doctrine)”).

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§ 221 (1958))); Deterts v. Times Publ’g Co., 38 Colo. App. 48, 52, 552

P.2d 1033, 1036 (1976) (same).

V. Application

¶ 19 We conclude that union activity cases in Colorado should be

analyzed under the mutual benefit doctrine to determine

compensability. In this case, the claimant, a union officer,

participated in a union meeting that served to facilitate ongoing

negotiations between the union and employer concerning a new

collective bargaining agreement. This process contributed to

employer’s efficient operation. Thus, we hold that the union activity

in this case was of mutual benefit to employer and employee.

¶ 20 Further, where it is determined that mutual benefit occurred,

the location of the injury is not determinative. Compare Ames, 474

A.2d at 572, 574 (worker from New Hampshire injured at union

negotiating session with employer held offsite in Boston), with

D’Alessio, 509 A.2d at 987 (purpose of after-hours union meeting

held on employer’s premises without management participation was

to assess grievances to “weed out” “mere gripes . . . from legitimate

contractual grievances before negotiation with employer”).

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¶ 21 Because the ALJ’s factual finding was premised on a

misapplication of the law, the Panel was not bound by it. Paint

Connection Plus v. Indus. Claim Appeals Office, 240 P.3d 429, 431

(Colo. App. 2010) (“When an ALJ’s findings of fact are supported by

substantial evidence, we are bound by them. However, an agency’s

decision that misconstrues or misapplies the law is not binding.”)

(citation omitted).

¶ 22 We conclude that, under these circumstances, claimant’s

union meeting was a mutual benefit to employer and employee.

Therefore, the injuries she sustained in the parking lot after leaving

the union meeting were compensable.

VI. Conclusion

¶ 23 The order is affirmed.

JUDGE BOORAS and JUDGE FOX concur.

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