Opinion
W.C. No. 4-258-486
May 12, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Henk (ALJ) which dismissed and denied his claim due to a lack of jurisdiction. We affirm.
The parties stipulated that on July 29, 1993, the claimant suffered a work-related injury in Colorado. At the time of the injury the claimant was employed as a long distance truck driver for Big Mac Trucking Company, Inc. (Big Mac), a Texas trucking company.
Under these circumstances, the ALJ determined that the claimant was required to prove a contract of hire in Colorado, or substantial employment in Colorado to establish Colorado jurisdiction over the claim. However, the ALJ determined that the claimant failed to sustain his burden of proof.
The ALJ's pertinent findings of fact may be summarized as follows. The claimant is a Texas resident. In June 1993, the claimant applied for employment with Big Mac. The claimant completed his employment application, pre-employment physical and pre-employment driving test in Texas. The claimant was subsequently hired in Texas and began working for Big Mac on June 14, 1993.
On July 27, 1993, the claimant was dispatched out of Texas to deliver a load to Denver, Colorado. The claimant delivered the load on July 28 and stayed overnight in Denver. On July 29 the claimant was picking up a new load in Denver when he was injured.
However, between June 14, 1993 and July 27, 1993 the claimant was not assigned any trips to Denver. Further, the claimant's payroll records reflect that only 700 miles of the 14,724 total miles he drove for Big Mac occurred in Colorado. The ALJ also determined that the claimant was dispatched by Big Mac 62 times during his employment and only 3.2 percent of the total runs were within Colorado. Therefore, the ALJ determined that the claimant's driving in Colorado represented a "very insubstantial" part of his employment for Big Mac.
I.
On review the claimant first contests the ALJ's determination that the claimant failed to prove "substantial employment" in Colorado. The claimant concedes that the legal standard for subject matter jurisdiction was established in United States Fidelity Guaranty Co. v. Industrial Commission, 99 Colo. 280, 61 P.2d 1033 (1936). In that case, where the claimant was injured in Colorado, the court held that to establish Colorado jurisdiction over the claim a claimant was required to prove that a "substantial portion" of his employment was performed in Colorado, or that he was hired in Colorado.
As expressly recognized by the ALJ, the determination of whether the claimant had "substantial employment" in Colorado is factual in nature, and there is no strict formula for determining whether a claimant's work in Colorado is "substantial." See Roseborough v. Schneider National, W.C. No. 4-007-808, December 17, 1991. However, in RCS Lumber Co. v. Worthy, 149 Colo. 537, 369 P.2d 985 (1962), the court considered the claimant's "usual" and "regular" employment in determining that one day of work in Colorado did not constitute "substantial employment" in Colorado. Relying upon RCS we have repeatedly held that the claimant's usual and regular employment are relevant factors in determining whether the claimant has established "substantial employment" in Colorado. See Pfuhl v. Prime, Inc. W.C. No. 4-215-425, February 16, 1995; Hatt v. Scneider National Carriers, Inc., W.C. No. 4-121-034, October 2, 1992; and Bryan v. Schneider National Inc., W.C. No. 3-962-117, August 23, 1991.
On appeal, the claimant contends that the jurisdictional test established in United States Fidelity Guaranty Co. v. Industrial Commission, supra, is now "obsolete" because the legislature repealed the extraterritorial provisions in former § 8-46-202 C.R.S. (1986 Repl. Vol. 3B). See 1989 Colo. Sess. Laws, ch. 69, p. 419. Instead the claimant contends that an injury in Colorado is now sufficient to confer Colorado jurisdiction over the claim.
Furthermore, the claimant argues that even if he was required to prove that a substantial portion of his employment occurred in Colorado, where as here, the claimant is injured in Colorado, "substantial employment" is not determined by the "regularity and routineness" of the claimant's work in Colorado. The claimant's contention is based upon his argument that the term "substantial" should not have the same meaning for injuries in Colorado as outside Colorado, because a significant nexus to Colorado already exists where the injury occurs in Colorado. Therefore, the claimant argues that the ALJ erroneously considered the claimant's usual and regular work in determining that he did not establish "substantial employment" in Colorado. We reject these arguments.
The claimant does not dispute that the three part jurisdictional test established in United States Fidelity Guaranty Co. v. Industrial Commission, supra, was followed by the court in Loffland Bros. Co. v. Industrial Commission, 714 P.2d 509 (Colo.App. 1985), and Monolith Portland Cement v. Burak, 772 P.2d 688 (Colo.App. 1989). Both Loffland and Burak involved injuries occurring in Colorado. Furthermore, Loffland and Burak reflect the court's conclusion that the claimant's usual and regular employment is relevant in determining whether a claimant who is injured in Colorado has established "substantial employment" in Colorado.
In Loffland the court expressly cited RCS Lumber Co v. Worthy, supra, concerning the claimant's duty to prove that a substantial portion of his work is performed in Colorado. The Monolith court cited Loffland for that proposition, and concluded that the evidence in that case established substantial employment in Colorado. Specifically, the court noted the evidence that it was the injured worker's "habit" to take work home, and that the injured worker "regularly worked" in the evening at his home in Colorado. 772 P.2d at 689.
Furthermore, nothing in RCS suggests a distinction between the standard of proof required to establish "substantial employment" in Colorado for injuries occurring in and out of Colorado. Therefore, we adhere to our previously stated position that regardless of whether the claimant's injury occurred in Colorado the ALJ may consider the regularity and routineness of the claimant's work in Colorado in determining whether the claimant has established "substantial employment" in Colorado. See Masters v. Viking System, W.C. No. 4-119-690, March 21, 1995.
Moreover, the claimant cites no Colorado authority for his contention that the repeal of former § 8-46-202 renders the principles established in United States Fidelity "obsolete," and we have not located any authority for this proposition. We also note that neither United States Fidelity, Loffland nor Monolith were not based upon former § 8-46-202. Therefore, we are not persuaded that the repeal of § 8-46-202 compels a conclusion that proof of a contract or hire in Colorado or substantial employment in Colorado is no longer required to establish Colorado jurisdiction over an injury in Colorado. Consequently, we reject the argument that the ALJ applied the wrong legal standard in finding that the claimant failed to prove substantial employment in Colorado.
Alternatively, the claimant contends that the record contains substantial evidence which "could easily lead to a conclusion" that he had substantial employment in Colorado. Specifically, the claimant asserts that he spent two days in Colorado which is a significant part of the six weeks he worked for Big Mac. He also contends that the loads he delivered and picked up in Colorado were the heaviest loads, and that his mileage for the Colorado trip was higher than the other trips.
Because the determination of whether the claimant established substantial employment in Colorado is factual in nature, we are bound by the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). Furthermore, insofar as the evidence is subject to conflicting inferences, we must defer to the ALJ's plausible inferences drawn from the record. Louisiana Pacific Corporation v. Smith, 881 P.2d 456 (Colo App. 1994).
Here, the ALJ's factual determinations concerning the claimant's employment for Big Mac are supported by substantial evidence and plausible inferences drawn from the record. Further, the ALJ's findings support his determination that the claimant's employment in Colorado was "very insubstantial."
We may not substitute our judgment for that of the ALJ in assessing the sufficiency and probative weight of the evidence City of Durango v. Dunagan, ___ P.2d ___ (Colo.App. No. 96CA0973, May 1, 1997). Therefore, we are bound by the ALJ's determination and it is immaterial on review that the record contains some evidence which, if credited, might support a contrary determination. See Durocher v. Industrial Claim Appeals Office, 905 P.2d 4 (Colo.App. 1995) (substantial evidence is that quantum of probative evidence which a rational fact-finder would accept as adequate to support a conclusion, without regard to the existence of conflicting evidence).
II.
The claimant also contends that the ALJ erred in failing to find a contract of hire in Colorado. The claimant argues that because he was employed to deliver goods, his contract of hire was not created until July 29, 1993 when he picked upon the new load in Denver. In support, the claimant relies upon the language in Denver Truck Exchange v. Perryman, 134 Colo. 586, 307 P.2d 805 (Colo.App. 1957), where the court stated that:
"if goods are shipped in conformity with an offer, the place of the contract is the place of shipment since the act requested is the shipment."
The claimant's arguments notwithstanding, we perceive no error in the ALJ's determination that the claimant was hired in Texas.
The legal standard for determining the location of a "contract of hire" was recently addressed by the Court of Appeals in Moorhead Machinery Boiler Company v. Del Valle, ___ P.2d ___ (Colo.App. No. 95CA2135, September 5, 1996), and we conclude that Moorhead is dispositive of the claimant's argument. Expressly citing Denver Truck Exchange v. Perryman, supra, the court stated that under the general rule the "place" of the contract of hire is 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." The Moorhead court also stated that the general rule as has been "tempered" in workers' compensation so that a contract of hire may be found as long as the fundamental elements of contract formation are present. See also, Aspen Highlands Skiing Corp. v Apostolou, 866 P.2d 1384 (Colo. 1994).
Applying these principles to the facts in Moorhead, the court concluded that a contract of hire occurred in Colorado where the claimant responded to the employer's request to a union hiring hall in Denver for members to work at a job site in Wyoming. The court determined that the terms and conditions of the Wyoming job were made known to the claimant at the time the offer was communicated, at which time the claimant was free to accept or reject the job in Wyoming. Therefore, the court held that by the time the claimant agreed to report for work in Wyoming, and departed his Colorado home for the job site, the fundamental elements of a contract of hire were present.
Here, the ALJ found that the claimant's application for employment with Big Mac and the entire pre-employment screening process occurred in Texas. Further, the ALJ determined that the claimant began working for Big Mac on June 14, 1993, when he accepted a dispatch from Texas to Louisiana. These findings are consistent with the record, and support the conclusion that the fundamental elements necessary for a contract of hire existed in Texas as of June 14, 1993.
Moreover, we do not consider the language relied upon by the claimant from Denver Truck Exchange v. Perryman, supra to be authority to the contrary. Perryman involved a Colorado corporation which hired an independent contractor in Michigan to transport its trucks to Colorado. The independent contractor died in Kansas while transporting of the trucks to Colorado. The court found that there was no "continuous agreement" between the parties, and that each truck delivery was a separate contract for the shipment and delivery of goods. 307 P.2d at 809. Nevertheless, the court concluded that the last contract preceding the claimant's fatal injuries was created in Michigan where the claimant accepted the offer to transport one of the corporation's trucks to Colorado. Therefore, the court held that the contract of hire did not occur in Colorado.
Unlike the facts in Perryman, this claim involves a continuous employment agreement between the claimant and Big Mac. In fact, the ALJ expressly found that the claimant was Big Mac's employee as of June 14, 1993. It follows that unlike Perryman, the claimant was already working under a contract of hire for Big Mac when he delivered the load in Denver on July 28, 1993 and prior to picking up the new load in Denver Colorado on July 29.
In any case, Perryman supports the ALJ's determination that a contract of hire existed on July 27 in Texas when the claimant accepted a dispatch to deliver a load to Denver. Therefore, we may not disturb the ALJ's determination.
IT IS THEREFORE ORDERED that the ALJ's order dated August 16, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. DeanNOTICE
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. (1996 Cum. Supp.).
Copies of this decision were mailed May 12, 1997 to the following parties:
Calvin Randy Richardson, 1289 Bandera Dr., Kaufman, TX 75142
Big Mac Trucking Co., Inc., Attn: King Park, P.O. Box 24425, Houston, TX 77229
Jeff Francis, Esq., 1900 Grant St., Ste. 1030, Denver, CO 80203 (For the Claimant)
Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For the Respondent)
Anne Smith Myers, Esq., 3800 E. Mexico Ave., Ste. 1000, Denver, CO 80210 (For the Respondent)
BY: _______________________