Opinion
W.C. No. 4-322-755
December 15, 1999
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Felter (ALJ) which denied and dismissed the claim based upon a determination that Colorado does not have jurisdiction over the claim. We affirm.
Section 8-41-204 C.R.S. 1999 provides that Colorado has no jurisdiction over injuries suffered outside the State of Colorado, unless the injured worker was "hired" in or "is regularly employed" in Colorado. See Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996).
The ALJ found that Alpha Therapy Services LLC. (Alpha) is a Texas company that provides physical therapists to nursing homes in Texas. Healthcare Staffing Solutions, Inc., doing business as Health Tour (hereinafter referred to as Health Tour) is a Massachusetts personnel placement agency for traveling therapists. Alpha contracted with Health Tour to provide traveling therapists in exchange for Alpha's payment of a fixed fee.
The claimant's wife, Anna Kay Tressell (the decedent), a Colorado resident, was a traveling therapist who contracted with Health Tour to locate temporary job assignments. Health Tour offered the decedent to Alpha for an assignment in Graham, Texas. Following a telephone interview of the decedent, Alpha approved the decedent's placement commencing November 4, 1996. The claimant accepted the placement offer and suffered fatal injuries during a one car accident in Texas on November 1, 1996.
The ALJ determined the decedent was not "regularly employed" by Alpha in Colorado. The ALJ also found no express or implied contract of hire between Alpha and the decedent. In so doing, the ALJ rejected the claimant's contention that the decedent was a "dual employee" of Alpha and Health Tour. Therefore, the ALJ determined Colorado has no jurisdiction over the claim for death benefits.
I.
On review, the claimant contends that as a matter of law the "unambiguous" language contained in the written agreements between the decedent, Health Tour and Alpha establish a Colorado contract for hire between the decedent and Alpha. We disagree.
For purposes of the Colorado Workers' Compensation Act, an employer-employee relationship is established when the parties enter into a "contract of hire." Section 8-40-202(1)(b), C.R.S. 1999; Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991). A contract of hire is subject to the same rules as other contracts. Denver Truck Exchange v. Perryman, 134 Colo. 586, 307 P.2d 805 (Colo.App. 1957).
The essential elements of a contract are competent parties, subject matter, legal consideration, mutuality of agreement, and mutuality of obligation. Aspen Highlands Skiing Corp. v Apostolou, 866 P.2d 1384 (Colo. 1994). A "contract of hire" is created when there is a "meeting of the minds' which creates a mutual obligation between the worker and the employer. Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996).
As argued by the claimant, the interpretation of a written contract is a question of law. Fibreglas Fabricators, Inc. v Kylberg, 799 P.2d 371, 374 (Colo. 1990). However, where the contract is unambiguous, the contract must be construed in harmony with the plain and generally accepted meaning of the words used, with reference to all the agreement's provisions. Cary v. Chevron U.S.A., Inc., 867 P.2d 117 (Colo.App. 1993).
Contrary to the claimant's arguments, the written agreements do not compel the finding of a contract of hire between Alpha and the decedent. The decedent did not sign the "Staffing Agreement" dated July 11, 1996, rather it is only a contract between Healthcare and Alpha. (Exhibit 1). The Staffing Agreement states that Health Tour shall provide "personnel to Alpha as "the client," and that upon accepting the offered personnel, the client agrees to the terms and conditions set forth in the Staffing Agreement. However, Alpha was free to reject any offered personnel, in which case Health Tour would search for another candidate suitable to Alpha.
The "Candidate Placement Agreement" dated October 26, 1996, is a contract between the decedent and Health Tour in which the decedent retained Health Tour "find and provide temporary assignments." (Exhibit 5). However, the Placement Agreement does not require the decedent to accept an assignment with Alpha or any client of Health Tour. Furthermore, Alpha was not a party to the Candidate Placement Agreement.
The "Client Service Agreement" dated October 17, 1996, (Exhibit 3) establishes the terms of the decedent's assignment in Graham, Texas. The Client Service Agreement indicates that the decedent shall work in Graham, Texas for 13 weeks commencing November 4, 1996. It also states that Health Tour shall assume the costs of the decedent's housing, travel and licensing in exchange for Alpha's payment of $9105 to Health Tour. The Client Service Agreement was signed by Alpha and Health Tour only and thus, does not purport to create any obligation directly between the decedent and Alpha.
Finally, the "Candidate Assignment Agreement" (Exhibit 4) dated October 18, 1996, contains the decedent's agreement to accept Health Tour's offer of a temporary assignment in Graham, Texas, under the terms negotiated by Health Tour with Alpha. However, Alpha did not sign the October 18 Agreement.
The decedent was arguably a beneficiary of the contracts between Health Tour and Alpha. However, that does not compel the conclusion that the decedent was a party to the contracts or that she negotiated a contract of hire directly with Alpha. In fact, the Staffing Agreement provides that Alpha shall not attempt to hire the Health Tour candidate during the period of the contract, and hires the decedent "as a temporary or traveler only through Health Tour." Similarly, the Candidate Placement Agreement provides that the decedent agrees to accept assignment with the clients only through Health Tour and agrees not to "accept employment by the Client" without permission from Health Tour. Under these circumstances, we agree with the ALJ that there was no meeting of the minds between the decedent and Alpha that the decedent was Alpha's employee. Consequently, the ALJ did not err in finding that the decedent was not hired by Alpha in Colorado.
The claimant's remaining arguments concerning the written agreements have been considered and do not alter our conclusions. We recognize that the Service Agreement states that it is "valid upon acceptance by the Candidate." However, we do not read this statement to create a contract of hire between the decedent and Alpha. Instead, it merely indicates that the terms and conditions of the "Staffing Agreement" between Alpha and Health Tour were binding when an approved candidate agreed to accept the proposed assignment in Texas.
II.
Further, we perceive no error in the ALJ's finding there was no implied "contract of hire" between the decedent and Alpha by virtue of the claimant's status as a "loaned employee." A "loaned employee" is an employee loaned or hired out to another employer for some specific service or a particular transaction. Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995). Under such circumstances, the worker is considered to be engaged in "dual employment."
However, evidence a worker has been "loaned" to another employer does not compel the conclusion that the worker was the "employee" of the borrowing employer for purposes of assigning liability for the worker's industrial injury. This is true because a "loaned employee" is not the same as an "employee." Continental Sales v. Stookesberry, 170 Colo. 16, at 23, 459 P.2d 566 (Colo 1969).
Rather, § 8-41-303 C.R.S. 1999, provides that the loaning employer shall remain liable for all workers' compensation benefits due the worker:
"unless it appears from the evidence in said case that the loaning constitutes a new contract of hire, express or implied, between the employee whose services were loaned and the person to whom the employee was loaned."
In other words, the loaning employer remains the "employer" which is liable for the injured worker's claim for workers' compensation benefits unless the evidence reflects a "new contract of hire" between the worker and the borrowing employer. Continental Sales v. Stookesberry, supra.
In determining whether there is a contract of hire between the borrowing employer and the worker, the following criteria are considered; 1) whether the borrowing employer has the right to control the worker's conduct; 2) whether the worker is performing the borrowing employer's work; 3) whether there is an agreement between the loaning employer and the borrowing employer; 4) whether the employee has acquiesced in the arrangement; 5) whether the borrowing employer had the right to terminate the worker; 6) whether the borrowing employer furnished the tools and place for performance; 7) whether the new employment was to be for a considerable length of time; 8) whether the borrowing employer had the obligation to pay the worker; 9) whether the original employer terminated its relationship with the worker. Of these nine factors, the critical factor is the consent of the worker. Evans v. Webster, 832 P.2d 951 at 955 (Colo.App. 1991). This is true because where there is a "new contract of hire," the claimant loses the right to recover workers' compensation benefits from the loaning employer and is barred from bringing a tort action against the borrowing employer for any work-related injury. Evans v. Webster, 832 P.2d at 955; A. Larson Workers' Compensation Law, § 67.01 (1999).
Accordingly, there is a presumption of a continuing employment relationship with the loaning employer unless the record contains a clear demonstration of a new temporary employment with the borrowing employer that has been substituted for the worker's employment relationship with the loaning employer. A. Larson Workers Compensation Law § 67.02 (1999). To establish a new temporary employment relationship there must be evidence of the claimant's deliberate and informed consent to be the employee of the borrowing employer. Continental Sales v. Stookesberry, 170 Colo. at 22-23; Larson § 67.02.
Here, the ALJ explicitly recognized that the Staffing Agreement between Alpha and Health Tour precluded Alpha from attempting to hire the decedent as its "regular, full-time" employee during the period of the contract between Alpha and Health Tour. (Finding of Fact 4). Rather, the Staffing Agreement expressly treated the decedent as Health Tour's employee on assignment to Alpha. Similarly, the record supports the ALJ's finding that the Candidate Placement Agreement precluded the decedent from accepting any employment with Alpha without Health Tour's permission. (Finding of Fact 15).
The Candidate Assignment Agreement indicates that the decedent's "temporary" assignment in Texas was conditioned on the decedent's receipt of housing, travel, dental, prescription and insurance benefits from Health Tour, as well as a $100 assignment bonus. Moreover, the record contains evidence the claimant would have worn a Health Tour employee identification badge during her assignment in Texas, and Alpha could not have unilaterally terminated the decedent's assignment. Accordingly, the evidence does not compel the finding that the claimant voluntarily agreed to relinquish her employment relationship with Health Tour to become Alpha's "employee." Therefore, the ALJ reasonably inferred that no implied contract of hire was created between Alpha and the decedent.
Finally, the claimant contends the ALJ erred in failing to find that the decedent was in "travel status" at the time of the injury. Because we uphold the ALJ's order denying the claim for lack of Colorado jurisdiction, we need not consider this argument.
IT IS THEREFORE ORDERED that the ALJ's order dated January 7, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed December 15, 1999 to the following parties:
John C. Tressell, 2667 E. 124th Pl., Thornton, CO 80241
Health Tour/Healthcare Staffing Solutions, Inc., Attn: Paul Ranelli, Cross Point Tower II, 8th Flr. 900 Chelmsford, St., Lowell, MA 08151
Steve Toth, RehabCare Group, Inc, 7733 Forsyth, #1700, St. Louis MO 63105
Cheryl Meers, Lockton Co., One City Place, #160, St. Louis, MO 63141
Alpha Theraphy Services, LLC. Attn: Alan Vogel, 4152 McKNight Rd., Texarkana, TZ 74403
Twin City Fire Insurance, c/o Hartford Insurance Company, Attn: Karen Gioia, 7670 S. Chester St., P.O. Box 22815, Denver, CO 80222
James E. Elliott, Jr., Esq. and Mark D. Elliott, Esq., 7884 Ralston Rd., Arvada, CO 80002 (For the Claimant)
Tama L. Levine, Esq., 1515 Arapahoe St., Tower 3, #600, Denver, CO 80202 (For Health Tour and Twin City Fire Insruance)
Donna Dell'Olio, Esq., and Mellisa L. Phillips, Esq. 431 N. Cascade Ave. #1, Colorado Springs, CO 80903 (For Alpha Therapy Services)
BY: A. Pendroy