RoadSafe v. ICAO

24CA0684 RoadSafe v ICAO 05-15-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0684
Industrial Claim Appeals Office of the State of Colorado
WC Nos. 5-222-010 & 5-222-011

RoadSafe Traffic Systems, Inc. and AIU Insurance Company,

Petitioners,

v.

Industrial Claim Appeals Office of the State of Colorado, Craig Clanton, and
Jenifer Clanton,

Respondents.

ORDER AFFIRMED

Division IV
Opinion by JUDGE HARRIS
Grove and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced May 15, 2025

Brown Gren Abraham & McCracken, LLC, Joseph W. Gren, J. Thomas
Stepleton, Denver, Colorado, for Petitioners

Philip J. Weiser, Attorney General, Evan P. Brennan, Assistant Attorney
General, Denver, Colorado, for Respondent Industrial Claim Appeals Office

The Babcock Law Firm, LLC, R. Mack Babcock, Denver, Colorado, for
Respondents Craig Clanton and Jenifer Clanton
¶1 After Jenifer Clanton and Craig Clanton, employees of

RoadSafe Traffic Systems, Inc., were seriously injured in a motor

vehicle accident during their commute to work, an administrative

law judge (ALJ) awarded them workers’ compensation benefits. The

Industrial Claim Appeals Office (Panel) affirmed the award.

Roadsafe and its insurer, AIU Insurance Company (collectively,

RoadSafe), appeal. We affirm the Panel’s order.

I. Background

¶2 The accident occurred as the Clantons drove to work in a

RoadSafe company truck. They each filed a related claim under the

Colorado Workers’ Compensation Act (Act). RoadSafe disputed the

claims, arguing that the Clantons’ injuries did not arise out of and

in the course of their employment and were thus not compensable

under the Act. See § 8-41-301(1)(b), C.R.S. 2024.

¶3 After consolidating the cases and holding an evidentiary

hearing on the compensability issue, the ALJ ruled in the Clantons’

favor. Specifically, the ALJ found that the Clantons’ injuries arose

out of and in the course of their employment under applicable

caselaw, because (1) the Clantons were “provided with a company

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vehicle and fuel card for commuting between home and work”;

(2) the Clantons were “working at the time of the accident, as they

were conducting their pre-shift meeting in the vehicle”; and

(3) RoadSafe “maintained some level of control over the manner in

which the [Clantons] commuted to work” because RoadSafe

required the Clantons to

• “log into the electronic fleet monitoring system prior [to]

the commute”;

• use the truck only for business purposes;

• “conduct a pre-trip inspection even prior to the

commute”; and

• comply with federal DOT regulations limiting drivers’

work hours.

¶4 RoadSafe appealed the ALJ’s ruling to the Panel, which

affirmed.

II. Analysis

¶5 RoadSafe contends that the Clantons are not entitled to

benefits because their injuries did not arise out of and in the course

of their employment. We disagree.

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A. Standard of Review

¶6 Under section 8-43-308, C.R.S. 2024, we may not disturb

factual findings “supported by substantial evidence,” and we may

only set aside the Panel’s decision if the factual findings do not

support the order, or the award of benefits is not supported by

applicable law. Substantial evidence is “probative, credible, and

competent, such that it warrants a reasonable belief in the

existence of a particular fact without regard to contradictory

testimony or inference.” Life Care Ctrs. of Am. v. Indus. Claim

Appeals Off., 2024 COA 47, ¶ 14. Assessing the weight, credibility,

and sufficiency of such evidence is the ALJ’s exclusive domain, and

findings based on conflicting evidence are conclusive on review.

Delta Drywall v. Indus. Claim Appeals Off., 868 P.2d 1155, 1157

(Colo. App. 1993).

¶7 We review de novo the Panel’s application of the law to the

facts and its ultimate conclusion. See § 8-43-308 (allowing us to

set aside the Panel’s order if the factual findings do not support the

disposition); Fisher v. Indus. Claim Appeals Off., 2021 COA 27, ¶ 15

(noting that we review de novo the Panel’s application of law to

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facts); Harbert v. Indus. Claim Appeals Off., 2012 COA 23, 9 (noting

we review de novo the Panel’s ultimate legal conclusion).

B. Legal Principles

¶8 The Act compensates injuries arising out of the course and

scope of employment. § 8-41-301(1)(b). The “arising out of”

component requires “a causal connection between the employment

and injury” such that the injury “has its origins in the employee’s

work-related functions and is sufficiently related to those functions

to be considered part of the employment contract.” Madden v.

Mountain W. Fabricators, 977 P.2d 861, 863 (Colo. 1999).

¶9 Under what is colloquially known as the “going to and from

work” rule, employees generally do not qualify for benefits if injured

during their commute, as travel time ordinarily does not constitute

“performance of services arising out of and in the course of

employment.” Id. However, exceptions to the rule abound. Id. at

863-64.

¶ 10 To determine whether an exception applies, courts consider

multiple, non-exclusive factors, including whether (1) the travel

occurred during working hours; (2) the travel occurred on or off the

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employer’s premises; (3) the employment contract contemplated the

travel; and (4) the obligations or conditions of employment created a

“zone of special danger” out of which the injury arose. Id. at 864

(citation omitted).

¶ 11 As to the third factor, travel is “within the employment

contract” when the employer “provides transportation or pays the

cost of the employee’s travel to and from work.” Id. at 865.

¶ 12 In Industrial Commission v. Lavach, 439 P.2d 359 (Colo. 1968),

for example, an employee was killed while commuting home from

work in a company truck. The company provided him the truck,

which he used both to commute and to make deliveries on the

company’s behalf. Id. at 361. The company also paid his fuel

expenses. Id. The Colorado Supreme Court determined that the

employee qualified for worker’s compensation benefits. Id. It

reasoned that “[w]here the employer agrees to provide its employee

with the means of transportation or pay the employee’s cost of

commuting to and from work, the scope of employment inferentially

enlarges to include the employee’s transportation.” Id.

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¶ 13 Similarly, Monolith Portland Cement v. Burak, 772 P.2d 688

(Colo. App. 1989), involved an employee killed while commuting to

work in a company vehicle. The company provided him the vehicle

for purposes of commuting and conducting company business. Id.

at 689. The company paid all attendant expenses, including fuel.

Id. Based on these facts, a division of this court found that “the

scope of employment inferentially include[d] the employee’s

transportation,” and thus the accident arose out of and in the

course of the employee’s employment. Id.

C. The Accident Arose Out of and in the Course of the Clantons’
Employment

¶ 14 We conclude, as the ALJ and the Panel did, that an exception

to the “going to and from work” rule applies in this case.

¶ 15 In light of the particular circumstances, we see no error in the

ALJ’s determination that the Clantons’ commute fell within the

scope of their employment. The ALJ found that the Clantons “were

provided with a company vehicle and fuel card for commuting

between home and work.” The Panel adopted the ALJ’s finding,

observing that RoadSafe “provided the claimants with the means of

transportation and paid for the cost of commuting[.]”

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¶ 16 RoadSafe argues that these findings are insufficient as a

matter of law to show that the Clantons’ travel was contemplated by

the employment contract. It says that unlike the employee in

Lavach, who sometimes performed work-related tasks on his way

home, the Clantons did not use the company truck for anything

other than commuting. Setting aside that the ALJ found that the

Clantons were likewise performing a work-related task at the time

of the accident, we disagree that the noted factual distinction is

dispositive. The court’s reasoning in Lavach did not turn on the

fact that the employee used the company vehicle for deliveries — on

the night of the accident, he was not making a delivery but only

commuting home from work. 439 P.2d at 360. Instead, the court

relied on a broader rule that when an employer “pay[s] the

employee’s cost of commuting,” the employment contract includes

the employee’s transportation. Id. at 361.

¶ 17 Alternatively, RoadSafe contends that the evidence does not

support a finding that it paid the Clantons’ cost of commuting.

That argument fares no better.

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¶ 18 It is undisputed that, at the time they were injured, the

Clantons were driving a company vehicle RoadSafe provided to

them. RoadSafe points out that it did not require the Clantons to

use the company truck for their commute, but we do not find that

fact controlling. To be sure, a requirement that the Clantons

commute in the company truck would show that the scope of

employment included transportation. But travel is also part of the

employment contract when it is “an inducement to employment” —

i.e., where the employer provides a benefit by covering the cost of

transportation. Madden, 977 P.2d at 865. In its opening brief,

RoadSafe concedes that use of the company vehicle was a “perk of

[the Clantons’] employment.”

¶ 19 RoadSafe also challenges the ALJ’s finding that the company

covered the cost of fuel. It acknowledges that the safety handbook

states that “fuel cards are issued for all company vehicles.” But

according to RoadSafe, it was unreasonable for the ALJ to infer

from this evidence that employees were permitted to use the fuel

card. Instead, RoadSafe argues that because the handbook

prohibits the use of company vehicles for “personal business,” the

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more reasonable inference is that employees could not use the fuel

card for “personal commuting use.” That argument makes little

sense, though, because if use of the truck was permitted for

commuting but not for personal use, then commuting could not

have been considered personal use. In any event, the ALJ could

properly infer that employees with access to a company vehicle for

commuting, and to a fuel card, could use the fuel card to cover the

cost of commuting. And even if RoadSafe’s proposed inference is

also reasonable, where “more than one reasonable inference . . .

may be drawn from the facts,” the “fact finder, not an appellate

court,” determines what inference should be drawn. Hoff v. Indus.

Claim Appeals Off., 2014 COA 137M, ¶ 44, rev’d on other grounds

by Pinnacol Assurance v. Hoff, 2016 CO 53; Davison v. Indus. Claim

Appeals Off., 84 P.3d 1023, 1031 (Colo. 2004) (An ALJ’s findings are

binding on appeal if supported by a “plausible inference from the

record.”).

¶ 20 RoadSafe argues that other of the ALJ’s findings are likewise

unsupported by the evidence — that the Clantons were engaged in

a pre-shift safety meeting at the time of the accident, and that they

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were required to, and did, inspect the truck before their commute.

Those findings were supported by the safety handbook and the

Clantons’ testimony. The handbook expressly directs “[a]ll

personnel” to “[a]ctively participate in pre-planning discussions

daily or prior to each shift to ensure all hazards have been

identified.” The Clantons testified that they routinely conducted

their pre-shift safety meetings during their commute. The

handbook also requires pre-trip inspections for vehicles weighing

more than 10,001 pounds. Ms. Clanton testified that RoadSafe

required her to inspect the truck before each trip. Neither party

presented any evidence regarding the truck’s weight, and we decline

RoadSafe’s invitation to take judicial notice of the fact that the

truck weighed less than 10,000 pounds. See City of Boulder v.

Dinsmore, 902 P.2d 925, 927 (Colo. App. 1995) (noting our review is

limited to the evidence in the appellate record).

¶ 21 Regardless, it is sufficient that the ALJ’s factual findings

establish an exception under Madden’s third factor. We conclude

that here, the employment contract contemplated the travel

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because RoadSafe provided a vehicle and covered the costs of the

Clantons’ commute.

¶ 22 Finally, because the scope of both claimants’ employment

inferentially included their transportation to and from work, we

reject RoadSafe’s argument that only Ms. Clanton, as the driver,

was entitled to an award of benefits.

III. Disposition

¶ 23 The Panel’s order is affirmed.

JUDGE GROVE and JUDGE PAWAR concur.

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