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.


                                    1
¶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


                                     2
  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


                                     3
  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


                                      4
  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.,


                                     5
  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).

                                       6
  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




                                     7
  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)”).

                                    8
  § 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”).




                                    9
¶ 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.




                                      10
