Opinion
W.C. No. 4-214-040
June 5, 1996
FINAL ORDER
The respondents seeks review of orders of Administrative Law Judge Friend (ALJ) which determined that the claimant's injury is covered by the Colorado Workers' Compensation Act, and awarded benefits. We affirm.
The ALJ's findings of fact may be summarized as follows. The claimant was a video cameraman who resided in Colorado. A television producer (Dumais) employed by the respondent-employer, called the claimant at his home in Colorado and offered him a job performing "videography" for the respondent-employer in Maine. At the time of the call, Dumais was in Maine. The claimant accepted the offer of employment during this telephone conversation.
Later, airline tickets were mailed to the claimant at his home in Colorado, and he flew to Maine. During the filming of a skiing event the claimant was injured.
Under these circumstances, the ALJ concluded that Colorado has jurisdiction of the claim under § 8-41-204, C.R.S. (1995 Cum. Supp). Specifically, the ALJ found that, when the claimant accepted the offer of employment during the phone conversation, he was "hired" in Colorado within the meaning of § 8-41-204.
I.
On review, the respondents first contend that the ALJ erred in determining that Colorado has jurisdiction. In support of this argument, the respondents cite conflicts of law decisions which hold that, where a contract calls for the performance of services, "Colorado applies the law of the state where a majority of those services are to be performed." The respondents reason that, in this case, the law of Maine applies. We reject this argument.
Section 8-41-204 provides as follows:
"If an employee who has been hired or is regularly employed in this state receives personal injuries in an accident or an occupational disease arising out of and in the course of such employment outside of this state, the employee . . . shall be entitled to compensation according to the law of this state. This provision shall apply only to those injuries received by the employee within six months after leaving this state . . ." (Emphasis added).
In State Compensation Insurance Fund v. Howington, 133 Colo. 583, 298 P.2d 963 (1956), the supreme court stated that the predecessor to § 8-41-204 provides an independent basis for extending workers' compensation coverage to employees hired in, or regularly employed in, Colorado who receive injuries within six months of leaving Colorado. Moreover, the Howington court held that the rule of "judicial decisions" is no longer effective in view of the statute. 298 P.2d at 970. Thus, we have held that Colorado has jurisdiction of a claim if either of the statutory criteria is met, case law to the contrary notwithstanding. See Gordon v. Mayflower Transit, Inc., W.C. No 4-183-933, July 13, 1995; Bryan v. Schneider National, Inc., W.C. No. 3-962-117, August 23, 1991.
Moreover, we see no basis for the assertion that the law of Maine should preempt or control the interpretation of a Colorado statute governing whether or not Colorado has jurisdiction over a work-related injury. Rather, Colorado is free to apply its own law to a work-related injury occurring in another jurisdiction so long as Colorado has sufficient contacts with the injury or worker to meet broad constitutional standards. See 4 Larson, Workmens' Compensation Law, § 86.31. Further, the place where the claimant was "hired" creates a sufficient contact for a state to apply its own law, even if the injury occurs in another state. 4 Larson, Workmens' Compensation Law, § 87.11.
Section 8-41-204 reflects the decision of the General Assembly that Colorado should apply its workers' compensation laws to out-of-state injuries if the claimant is hired within Colorado and is injured within six months of leaving the state. Colorado need not resort to foreign law to determine whether its own workers' compensation law will apply to an out-of-state injury. Consequently, the respondents' citation conflict of laws decisions is not apposite.
II.
The respondents next contend that, even if the ALJ correctly determined that the place of making the employment contract was Colorado, "it does not follow that this state has jurisdiction over the claimant's injury in Maine." The respondents assert that being "hired" in Colorado "is not the simple equivalent of the claimant having agreed while in Colorado to take a job position in Maine." To the contrary, the respondents assert that hiring "requires that a Colorado employment relation have been established." We are not persuaded by this argument.
In Denver Truck Exchange v. Perryman, 134 Colo. 586, 307 P.2d 805 (1957), the court held that the place of making a contract is determined in accordance with the parties' intentions. As a rule, the place of contracting "is considered to be the place where the offer is accepted, or where the last act necessary to a meeting of the minds or to complete the contract is performed." Further, the existence of a contract for hire is a question of fact for the ALJ. Tuttle v. ANR Freight System, Inc., 797 P.2d 825 (Colo.App. 1990). Consequently, we must uphold the ALJ's determination that the claimant was "hired" in Colorado if supported by substantial evidence. Section 8-43-301(8), C.R.S. (1995 Cum. Supp); Pfuhl v. Prime, Inc., W.C. No. 4-215-435, October 13, 1994.
Here, the evidence supports the ALJ's finding that the claimant "accepted" the offer of employment when he agreed to perform services for the respondent-employer while speaking on the telephone in Colorado. Thus, there is substantial evidence to support the determination that the claimant was "hired" in Colorado.
The respondents' contention that § 8-41-204 requires not only "hiring," but also an "employment relationship" is not supported by the plain meaning of § 8-41-204. To the contrary, § 8-41-204 is worded in the disjunctive, and indicates that either hiring or regular employment is sufficient to create the requisite relationship between Colorado and the injury. See also, State Compensation Insurance Fund v. Howington, supra.
Further, we do not agree with the respondents that § 8-41-301(1)(a), C.R.S. (1995 Cum. Supp) provides any impediment to Colorado jurisdiction of this claim. That statute provides that the employer must be "subject to the provisions" of the Act in order for liability to attach. It does not purport to determine when an employer has performed an act sufficient to bring the employer within the jurisdiction of Colorado. In fact, that function is performed by § 8-41-204, which subjects employers to Colorado jurisdiction if they "hire" employees within the state, and the employee is injured within six months of leaving the state.
IT IS THEREFORE ORDERED that the ALJ's orders dated April 26, 1995, and October 18, 1994, are affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed June 5, 1996 to the following parties:
Robert J. Tatlock, 8060 E. Girard Ave., #219, Denver, CO 80231
Resort Sports Network, P. O. Box 7528, Portland, ME 04112-7528
C. Kriksciun, Esq., Colorado Compensation Insurance Authority — Interagency Mail
Mark A. Simon, Esq., 501 S. Cherry St., #820, Denver, CO 80222 (For Claimant)
By: ________________________