Opinion
Rehearing Denied April 23, 1974.
Zarlengo, Mott & Zarlengo, Albert E. Zarlengo, Jr., Denver, for respondents The State Constr. Co. and The Employers Ins. Co. of Wausau.
James A. May, Robert S. Ferguson, Francis L. Bury, Denver, for petitioners Victor C. Crow d/b/a Valley Bentonite, and Division of State Compensation Ins. Fund.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Assistant Atty. Gen., for respondent The Industrial Commission of Colorado.
COYTE, Judge.
Victor C. Crow, d/b/a Valley Bentonite (Valley) seeks review of an order of the Industrial Commission which held him liable for injuries sustained by claimant. We affirm.
The record discloses that claimant was employed by Valley as a mechanic and his duties required him to service construction equipment owned by Valley. Valley leased certain equipment to The Stake Construction Company (Stake) in connection with a construction project. On the project, claimant serviced equipment owned by Valley and also equipment owned by Stake. Claimant was compensated for the services performed for Stake at a rate of $4.50 per hour, which sum was paid directly to Valley, who then transferred the entire amount to claimant. On November 24, 1971, claimant incurred an injury while he was servicing equipment owned by Stake. He filed a claim for workmen's compensation, and, after a hearing, the referee ruled that Valley was liable for workmen's compensation benefits for the injury sustained by claimant. The Industrial Commission affirmed and adopted the order of the referee, and Valley seeks review of that order.
Valley contends that it is not liable for workmen's compensation benefits because, at the time of the accident, claimant was a loaned employee who was working for Stake under an express or implied contract of hire and that by reason thereof Stake was liable as a special employer and that Valley should be exculpated from liability. We disagree.
As pertinent to this case, C.R.S.1963, 81--13--1, provides that the 'loaning employer' shall be liable for workmen's compensation:
'. . . unless it shall appear from the evidence in said case that said loaning constitutes a new contract of hire, express or implied, between the employee whose services were loaned and person to whom he was loaned.'
In cases involving the question of whether a claimant is a loaned employee, the initial issue is whether the arrangement between the 'borrowing' employer and the employee constituted a new contract of hire. If it is determined that there was no new contract of hire, then further inquiry into the liability of the borrowing employer is foreclosed. Continental Sales Corp. v. Stookesberry, 170 Colo. 16, 459 P.2d 566. The question as to whether there is a new contract of hire presents a factual issue to be determined by the Commission, and, when the finding on this issue is supported by the evidence, such finding is binding upon us. Rocky Mountain Dairy Products v. Pease, 161 Colo. 216, 422 P.2d 630; Continental Sales Corp. v. Industrial Commission, 31 Colo.App. 223, 502 P.2d 90.
Here, the Commission did not find that there was a new contract of hire and ruled that the claimant was a loaned employee and that Stake was not liable for workmen's compensation benefits in connection with the injury suffered by claimant. We have examined the record and are satisfied that the evidence supports the order of the Commission. Accordingly, the order of the Commission is affirmed.
SILVERSTEIN, C.J., and ENOCH, J., concur.