4-507-018 (2007). KATHLEEN HAFNER AND MARC HAFNER, Dependents of MIKEL D. HAFNER, Decedent And JOHN HAFNER Claimants, STURGEON ELECTRIC, Employer, and ZURICH INSURANCE CO., Insurer, Respondents.

• Case Date: June 26, 2007
• Court: Colorado

Colorado Workers Compensation 2007. 4-507-018 (2007). KATHLEEN HAFNER AND MARC HAFNER, Dependents of MIKEL D. HAFNER, Decedent And JOHN HAFNER Claimants, STURGEON ELECTRIC, Employer, and ZURICH INSURANCE CO., Insurer, Respondents INDUSTRIAL CLAIM APPEALS OFFICEW. C. Nos. 4-507-018 and 4-506-807IN THE MATTER OF THE CLAIM OF KATHLEEN HAFNER AND MARC HAFNER, Dependents of MIKEL D. HAFNER, Decedent And JOHN HAFNER Claimants, STURGEON ELECTRIC, Employer, and ZURICH INSURANCE CO., Insurer, Respondents.FINAL ORDER The respondents seek review of a supplemental order of Administrative Law Judge Connick (ALJ) dated March 13, 2007, that found the consolidated claims were compensable. We affirm. These claims have an involved appellate history. The claims arise out of a motor vehicle accident that occurred on May 18, 2001 on Highway 6. The claimant John Hafner (John) was a passenger in a truck driven by his father Mikel Hafner (Mikel). The accident occurred as John and Mikel were driving to work at the Casino Project located in Black Hawk, Colorado. Mikel was killed in the accident and his wife and younger son seek death benefits. John sought workers' compensation benefits for injuries and disability sustained as a result of the accident. The claims were originally heard before ALJ Coughlin who denied the claims. The panel reversed the ALJ's order. The court of appeals determined that we had misapplied Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999) in concluding that the receipt of a wage premium, without more, rendered compensable death and injuries resulting from the accident during the travel to work. Sturgeon Electric v. Industrial Claim Appeals Office, 129 P.3d 1057 (Colo. App. 2005). The court of appeals remanded for additional findings and evidence regarding the relationship between a $1.50 per hour premium paid by the employer to employees who agreed to work on the Casino Project and Mikel's and John's travel expenses. The court of appeals noted that in Madden, the supreme court addressed the going to and coming from work rule, under which injuries are generally not compensable under the Workers' Compensation Act. The Madden court held that "the determination of whether a traveling employee's injury warrants an exception to the going to and from work rule is such a fact-specific analysis that it cannot be limited to a predetermined list of acceptable facts and circumstances." Madden, 977 P.2d at 864. Accordingly, the Madden court ruled that the proper approach was to consider a number of factors to determine whether special circumstances warrant recovery under the Act. According to the Madden court, those factors include, but are not limited to: (1) whether the travel occurred during working hours; (2) whether the travel occurred on or off the premises; (3) whether the travel was contemplated by the employment contract; and (4) whether the obligations or conditions of employment created a "zone of special danger" in which the injury arose. Id. The court of appeals pointed out that the Madden court, in addressing the third factor, explained that the issue of whether travel was contemplated by the employment contract "has the potential to encompass many situations." Sturgeon Electric, 129 P.3d at 1059, quoting Madden,977 P.2d at 864. The common link among compensable situations is that travel is a substantial part of the service provided to the employer as, for example, (a) when a particular journey is assigned or directed by the employer; (b) when the employee's travel is at the employer's express or implied request or when such travel confers a benefit on the employer beyond the sole fact of the employee's arrival at work; and (c) when travel is singled out for special treatment as an inducement to employment. The Madden court further noted that these examples are "not an exhaustive list of the situations when travel is found to be part of the employment contract." Madden, 977 P.2d at 865. The court of appeals explained that the issue presented here, whether travel is singled out for special treatment as an inducement to employment when the employer pays an increased hourly premium to induce workers to travel to a particular worksite, has not been previously addressed by Colorado's appellate courts. The court of appeals adopted a fact-specific analysis to determine whether an additional payment for travel brought such travel within the scope of the employment relationship as most consistent with the Madden court's mandate to employ a fact-specific inquiry. Accordingly, the court of appeals remanded for the determination of additional facts that bear on whether the $1.50 per hour premium here was in the nature of W. C. Nos. 4-507-018 and 4-506-807 Page 3 noncompensable work remuneration or a travel payment that is substantially related to the distance...