Opinion
Yegge, Hall & Evans, Don R. Evans, Denver, for respondent Marine Wood McCormick, claimant.
Tarter & Tarter, James E. Tarter, Colorado Springs, for petitioners.
Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for respondents Industrial Comm. of Colo. and Director, Division of Labor.
PIERCE, Judge.
George McCormick died as the result of injuries sustained in an airplane crash. His widow filed a claim for compensation with the Colorado Industrial Commission, alleging that he was killed while flying pursuant to an employment agreement with Aubrey Schenck Enterprises (Schenck). The Commission affirmed the finding of thr referee that McCormick was in fact an employee of Schenck at the time of the accident. Schenck appeals that determination. We affirm.
The relevant facts of this case are for the most part undisputed. Schenck, a California corporation which produces motion pictures, was on location for the filming of a movie in Fremont County, Colorado in the summer of 1969. McCormick, the owner of a motion picture theater in Canon City, Colorado, had worked as an extra for Schenck while Schenck was in the area doing another film. The dispute in this case arises out of service McCormick performed for Schenck during July 1969.
McCormick, while flying his airplane in the vicinity of one of the sets for the proposed movie, noticed that an underwater cable which was to pull a barge, one of the central sets in the picture, was visible from the air. He advised the director of the movie, Robert Sparr, of this fact. Since it was apparently the intention of Sparr to have aerial views of this barge, he was concerned that the results would be unacceptable if the cable was in fact visible from the air. In order to decide whether they could proceed with their plans for the aerial photography, it was determined that it would be necessary for Sparr and his director of photography, Gerald Finnerman, to view the scene from the air.
Aubrey Schenck, the executive producer, upon being informed of this dilemma, advised Sparr and Finnerman that he would make arrangements to have George McCormick take Sparr and Finnerman for a flight over the movie location. Schenck, unable to make contact with McCormick, asked Karol Smith, a resident of Canon City and liaison for the company while it was in the area, to call McCormick and request that McCormick take Sparr and Finnerman over the location. Smith did this and McCormick agreed. The plane crashed, killing McCormick and Robert Sparr, and severely injuring Gerald Finnerman.
The sole issue on appeal is whether there is evidence in the record to support the Commission's finding that McCormick was an employee of Schenck Enterprises. It is undisputed that there was no specific arrangement made for pay prior to the flight. However, there was conflicting evidence as to the custom of the movie industry in paying people who work for them on the scene. McCormick's widow and his brother testified that, when they had done work for the movie industry in the past, they were paid even when there was not a prior arrangement. Karol Smith testified that, although no arrangement was made prior to this flight, he was confident that McCormick would have been paid for his services.
On appeal, Schenck and its insurer contend that the evidence was totally inadequate to show that the deceased was an employee of Schenck. Specifically, they contend that there is no evidence from which the referee could conclude that there was a contract of employment, either express or implied, because there was no evidence that pay was intended, or that the work was done in the usual course of trade or business. Schenck further contends that the evidence strongly suggests that McCormick was a volunteer, working entirely for his own benefit. These matters are questions of fact, and where there is competent evidence in the record to support the Commission in its conclusions with regard to such facts, this court will not disrupt those findings on review. Industrial Commission v. Allen, 28 Colo.App. 546, 478 P.2d 702. While we might have come to different conclusions from the same facts, it is beyond our power to disturb the Commission's findings.
Schenck next contends that if McCormick was not a volunteer, he was an independent contractor rather than an employee, and thus was not entitled to compensation from Schenck. The evidence concerning the status of McCormick was in conflict and susceptible of conflicting inferences. Although the evidence would have supported a finding that McCormick was an independent contractor, it also supports the referee's finding that McCormick was an employee. Under these circumstances, the Commission's findings will not be disturbed on review. Industrial Commission v. Allen, Supra. See 1A, A. Larson, The Law of Workmen's Compensation s 45.
Schenck's final contention is that certain documents were admitted into evidence which should not have been considered by the Industrial Commission. Specifically, the initial reports of several insurance investigators were submitted into the Commission's file of the case. 1969 Perm.Supp., C.R.S.1963, 80--1--22, sets forth the standard for admission of evidence in Industrial Commission cases. That section states that the admission of such evidence is within the sound discretion of the Commission, and since there was enough competent evidence to support the findings without these documents, we perceive no reversible error.
Order affirmed.
DWYER and ENOCH, JJ., concur.