A substantially similar rule of construction, contained in a declaration of legislative intent and effective July 1, 1990, a date also subsequent to the date of Apostolou's injuries, was first adopted in ch. 62, sec. 1, section 8-40-102, 1990 Colo. Sess. Laws 468, 468-469. In Hall v. State Compensation Ins. Fund, 154 Colo. 47, 387 P.2d 899 (1963), a hospital provided free lunches to a person working with a volunteer service unit at the hospital. In holding that the person was not working under a contract of hire, we noted: "She was not under contract — at no time did she expressly or by implication obligate herself to the hospital, nor did the hospital at any time obligate itself to her."
The burden is on Younger to prove that she was a Civil Service employee when she was injured while taking the physical agility test as an applicant for an entry-level police officer position. See Hall v. State Compensation Ins. Fund, 154 Colo. 47, 50, 387 P.2d 899, 901 (1963). Pursuant to the statutory requirements, it is incumbent upon Younger to show that she was serving the Commission under an appointment or a contract of hire. Under the facts presented, it is clear that, by performing the physical agility test, Younger was not serving the Commission pursuant to an "appointment," because a position as a police officer is not one for which a person is appointed.
It is not appropriate to deny benefits as a matter of law because Higgins was younger and what he was to receive was of lesser value or because there would be no coverage had he been doing like work for a friend or neighbor rather than as part of the newspaper's distribution system. In Hall v State Compensation Insurance Fund, 154 Colo. 47; 387 P.2d 899 (1963), where it was held that a Blue Lady "was rendering services as a volunteer", Blue Ladies as a group were held to be exempt, not a particular Blue Lady. Similarly, see Enderby v Industrial Commission, 12 Wis.2d 91; 106 N.W.2d 315 (1960).
Plaintiffs claim that as a result of the Defendant's breach of that duty, they suffered injuries. The only case in Colorado which seems to address the issue is Hall v. State Compensation Insurance Fund, 154 Colo. 47, 387 P.2d 899 (1963). The Hall case concluded that workmen's compensation benefits would be payable to a gratuitous employee and would therefore bar such employee from filing a tort claim against the employer.
Although liberal interpretation of the WCA counsels against strict application of "each and every formality attending commercial contractual relationships, . . ." the Colorado courts have consistently ruled that "[a] contract for hire is subject to the same rules as other contracts. Denver Truck Exchange v. Perryman, 134 Colo. 586, 307 P.2d 805, 810 (1957); see also Hall v. State Compensation Insurance Fund, 154 Colo. 47, 387 P.2d 899 (1963). Where no such contract exists in fact or by operation of law, and the parties are not "in the same employ," the exclusive remedy rule is without effect.
Other jurisdictions with statutory provisions similar to our Code 65.1-4 have adopted this view. See, e.g., Van Horn v. Industrial Accident Commission, 33 Cal.Rptr. 169, 172, 219 Cal.App.2d 457, 463 (1963); Hall v. State Compensation Insurance Fund, 154 Colo. 47, 50, 387 P.2d 899, 901 (1963). Here the circumstances do not permit a presumption that decedent and defendant, by their conduct, intended that decedent would be paid for his work.
For a general discussion as to the preclusion of volunteers from coverage under compensation acts, see 1 Larson, Workmen's Compensation § 47.41(a), at 696-697 (1965). For other authorities holding that claimant must prove that a contract of employment existed before coverage under the compensation acts is applicable, see Hall v. State Compensation Ins. Fund, 154 Colo. 147, 387 P.2d 899, 901 (1963); Howard v. Early Chevrolet-Pontiac-Cadillac, Inc., 150 So.2d 309, 313 (Ct.App.La. 1963); Harris v. Sun Indem. Co., 28 So.2d 403 (Ct.App. La. 1946); Smith v. State Industrial Acc. Comm'n, 144 Or. 480, 23 P.2d 904, aff'd 25 P.2d 1119 (1933). In reaching this conclusion, we reject appellees' contention that the facts adduced bring Alva Wisdom's death within those authorities which have permitted recovery under compensation statutes where impressment into public service was shown.
Thus, if the services are volunteered without any expectation of compensation in return, the fact that the alleged employer may provide some benefit on a gratuitous basis will not convert a volunteer into an employee. See Hall v. State Compensation Insurance Fund, 154 Colo. 47, 387 P.2d 899 (1963) (member of organization donating services to hospital is not an employee simply because she received free lunch at hospital). We cannot say, therefore, that, simply because a passenger tramway operator provides a ski patrol member with a free skiing pass, that fact alone, without consideration of the particular circumstances involved, removes the ski patrol member from the category of a "volunteer" under § 8-40-301(4).
Under § 8-40-202(1)(b), C.R.S. (1990 Cum. Supp.), as under the predecessor statute in effect in 1988, service performed by one person for another cannot be employment covered by the Workers' Compensation Act in the absence of a "contract of hire, express or implied" between the parties. See Hall v. State Compensation Insurance Fund, 154 Colo. 47, 387 P.2d 899 (1963); State Compensation Insurance Fund v. Industrial Commission, 135 Colo. 570, 314 P.2d 288 (1957). We construe that statutory wording as permitting a contract of hire to be implied by estoppel.
An unpaid volunteer in the service of a private entity cannot be an employee because there is no contract of hire. See Hall v. State Compensation Insurance Fund, 154 Colo. 47, 387 P.2d 899 (1963). An unsalaried person in the service of a public entity, however, maybe an employee under the Workers' Compensation Act.