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Sep 1, 2020

Colorado Court: Pilot Not Engaged in Personal Deviation in Spite of Elevated Alcohol Level in His Blood

A Colorado appellate court recently affirmed a decision by the state's Industrial Claim Appeals Office that found an airline pilot’s widow and children were entitled to survivor benefits after the pilot sustained fatal injuries when he was struck by a car one morning about 5:30 a.m., as he crossed a street in Denver, where he and a co-employee were undergoing flight training [SkyWest Airlines. v. Industrial Claim Appeals Office, 2020 COA 131, 2020 Colo. App. LEXIS 1508 (Aug. 27, 2020)]. An ALJ found the pilot had been engaged in a personal deviation from the employment at the time of the accident. Blood tests conducted at a hospital indicated the pilot's blood alcohol level was twice the legal limit. The appellate court held the pilot's deviation ended when he attempted to return to his hotel.

Background

Ordonez-Gamez, a pilot for the employer, SkyWest Airlines, Inc., lived in California with his wife and two young children. In January and February 2018, he came to Denver for flight training. While training in Denver, decedent stayed at the SpringHill Suites, located at the southwestern intersection of 68th Avenue and Tower Road.

On February 14, 2018, decedent and his simulator partner, Baylee Ladner, took the difficult Initial Maneuvers Validation test from 6 p.m. to 10 p.m. After successfully completing the test, decedent and Ladner had dinner and "a couple of beers" at a nearby restaurant to celebrate. From the restaurant, they headed to a different establishment to continue drinking and celebrating. At approximately 2 a.m. on February 15, 2018, decedent and Ladner stopped drinking alcohol, left the establishment, and returned to Ladner's hotel, the Fairfield Inn & Suites, located at the southwestern corner of 69th Avenue and Tower Road, one block north of and on the same side of Tower Road as the SpringHill Suites where decedent was staying.

The desk attendant at the Fairfield Inn said she thought decedent was intoxicated. For example, on two occasions, decedent asked the attendant why his key card wouldn't open the door to his room. The attendant told him that he was in the wrong hotel. Decedent and Ladner proceeded to Ladner's room, where decedent stayed for about three hours, apparently falling asleep. The attendant saw decedent again about 5:30 a.m., and again reiterated that decedent's key should work at his own hotel "about two buildings over." The attendant testified that decedent still appeared inebriated. Decedent apparently left the Fairfield Inn and was struck by a car nearby.

ALJ's Decision

Decedent's widow and children sought survivor benefits pursuant to the Colorado Workers' Compensation Act. After a hearing, the ALJ found that decedent and Ladner "finished drinking" at approximately 2 a.m., that decedent was still intoxicated when he was struck by the vehicle, and that decedent was "running away" from his hotel and from the employer's training facility when he was struck. Relying on these findings, the ALJ concluded that decedent had been engaged in a personal deviation at the time of the accident "due to hours of consuming alcohol" and had not returned to travel status within the course and scope of his employment.

Panel Disagrees

A panel of the Industrial Claim Appeals Office ("the Panel"), determined that, based on the ALJ's factual findings, by the time decedent was involved in the collision, his personal deviation had ended. It noted specifically that the ALJ had found that decedent stopped drinking about four hours before the accident, and that although he had not returned to his hotel room he nevertheless had returned to lodging in Ladner's hotel room.

Blood Tests

Finally, the Panel ruled that, to the extent the ALJ admitted toxicology results establishing that decedent's BAC was 0.209 just before his death to reduce claimants' benefits under section 8-42-112.5, she erred. The Panel observed that, under the express language of section 8-42-112.5(1), a second blood sample must be preserved. Because a second sample was not preserved, the toxicology results could not be used to reduce claimants' benefits under the statute.

Appellate Court Decision

The appellate court initially reviewed Colorado's law with regard to "travel status" [see Larson's Workers' Compensation Law, § 25.01, et seq.], noting that if the employee's job duties require travel, the travel is considered to be a part of the job, and any injury occurring during such travel is compensable. It also noted, however, that a traveling employee's injuries were not compensable if the injury occurred while the employee was engaged in a "personal deviation."

The court added that there appeared to be no dispute between the parties that decedent was in travel status while in Colorado or that he had engaged in a personal deviation. Rather, the dispute was whether decedent ended his deviation and returned to travel status before his fatal accident.

Citing Pat's Power Tongs, Inc. v. Miller, 172 Colo. 541, 474 P.2d 613 (1970), the court stressed that the supreme court there ruled that claimants' deviation ceased the moment they commenced their return to their lodging. In the instant case, the ALJ distinguished Pat's Power Tongs because decedent was not proceeding toward his lodging quarters when he ran across Tower Road. The court said it was not convinced that this fact was dispositive. The uncontroverted evidence suggested the two pilots went back to Ladner's room, where they talked for a while and then fell asleep. In other words, decedent had already returned to "lodging quarters for the night" (even if it was his colleague's room). The accident happened hours later. The court, therefore, agreed with the Panel that, under Pat's Power Tongs, the ALJ's findings mandated an award of benefits to claimants.

Blood Tests Inadmissible To Support Reduction in Award

An employer may invoke a 50 percent penalty under Colo. Rev. Stat. § 8-42-112.5, if the work-related accident resulted from the presence in the worker's system of a blood alcohol level exceeding 0.10 percent. The statute requires the preservation of a second blood sample in order to so limit the benefits. The court held, as a matter of first impression, that the Panel's decision could not take advantage of the 50 percent reduction in benefits was correct since a second sample of decedent's blood had not been preserved.