1. WORKERS' COMPENSATION — Employee — "Travel Status" — Within Scope of Employment — Leaves Home — Until — Return. When an employee is in "travel status," he normally is considered to be within the course of his employment, for the purpose of awarding workmen's compensation benefits, from the time he leaves his home until he returns to it.
Opinion by JUDGE ENOCH.
This is an appeal from a final order of the Industrial Commission of Colorado awarding benefits to claimants as a result of the death of Alden D. Whitmer. The principal issue presented is whether Whitmer was within the coverage afforded by C.R.S. 1963, 83-11-6, at the time of his death. Alden Whitmer will be referred to as decedent; his employer, Silver Engineering Works, Inc., will be referred to as employer; and decedent's dependents will be referred to as claimants.
Following decedent's death, claimants filed a notice and claim for compensation which was denied by the referee. The claimants then filed a petition for review with the Industrial which set aside the referee's order and granted compensation. The employer and The Travelers Insurance Company have appealed. We affirm the Commission's award.
The factual background of this case is as follows: The decedent, who resided in Colorado with his family, was in El Dorado, Mexico, at his employer's request to assist and be trained in the operation of a continuous diffuser sold by the employer to a Mexican sugar plant. Decedent arrived in El Dorado on March 20, 1967, and was expected to remain there for a period of time. Decedent and other employees of employer were provided with room and board at the sugar plant owner's house located near the outskirts of the City of El Dorado, an agricultural city with a population under 10,000. The next closest city was approximately 40 miles away. The sugar plant owner provided two Volkswagen automobiles and gasoline for the use of employer's personnel, including decedent. These automobiles were furnished with the knowledge of employer and were to be used by its employees for recreation and pleasure as well as business.
On March 23, 1967, the sugar plant was shut down for the Easter weekend and on that morning, the employer's personnel had a business conference which lasted until about 12:30 p.m. At this conference, it was decided that the personnel were free to do whatever they wished for the remainder of the day. Following lunch, decedent, his supervisor, another employee and his family drove to a beach six miles away to fish and swim. The decedent went swimming and his absence was not noticed until about 5:30 p.m. His body was found the following morning by a fisherman.
The issue presented by the facts of this case is whether recreational activities of employees who are required by their employer to travel to and remain at a distant location are within the scope of their employment for purposes of awarding compensation under the Workers' Compensation Act.
[1] When an employee is in "travel status," as in the present case, he normally is considered to be within the course of his employment, for the purpose of awarding Workers' Compensation benefits, from the time he leaves his home until he returns to it. Tatum-Reese Develop Corp. v. Industrial Commission, 30 Colo. App. 149, 490 P.2d 94. See Alexander Film Co. v. Industrial Commission, 136 Colo. 486, 319 P.2d 1074. The trend in recent cases is to allow compensation for any injury occurring during a "travel status" period or when an employee is required by his employer to live in a remote place, as long as the employee was engaged in a reasonable activity at the time of the injury. See Game Fish Dept. v. Pardoe, 147 Colo. 363, 363 P.2d 1067; Schneider v. United Whelan Drug Stores, 284 App. Div. 1072, 135 N.Y.S.2d 875; 1 A. Larson, Workers' Compensation Law § 25.00, et seq. We find the rationale of this trend persuasive. [2] When an employee is required to travel away from home, the activities covered by Workers' Compensation are enlarged as the employee has no choice but to eat, sleep and conduct all his other activities away from his home. See Alexander Film Co. v. Industrial Commission, supra. During the period of time the employee is in travel status he usually will have a number of hours each day to spend as he pleases. Some of this time will be utilized for sleeping, eating and other necessary ministrations and some may be utilized for relaxation and recreation. There is no question that when an employee is engaged in necessary ministrations, he is within the course of his employment. Alexander Film Co. v. Industrial Commission, supra. When an employee in travel status is relaxing or seeking recreation, we find no compelling reason to hold that he has left the scope of his employment as long as the activity is reasonable and is performed in a reasonable manner. Employees in travel status cannot be expected to remain immobile during free time. To the contrary, just as they are expected to minister to themselves, it would be as realistic to presume they would take opportunities to relax and seek recreation. It is only logical to conclude that an injury incurred by an employee on travel status is compensable as long as the employee was engaged in a reasonable activity at the time of the injury.
[3] There is no evidence in the record to suggest that the beach chosen was so dangerous as to render swimming there unreasonable, or that decedent pursued this activity in an unreasonable manner. Under the circumstances of this case, the decedent was engaged in a reasonable activity and we agree with the Commission's award that the claimants are entitled to compensation.
We find no merit to the employer's contention that the Industrial Commission award failed to take into account the remarriage of the decedent's widow. See Industrial Commission v. Employer's Liability Assurance Corp., 169 Colo. 396, 456 P.2d 739.
Order affirmed.
JUDGE DWYER concurs.
CHIEF JUDGE SILVERSTEIN dissents.