Opinion
W.C. No. 4-183-933
July 13, 1995
ORDER OF REMAND
The claimant seeks review of a final order of Administrative Law Judge Erickson (ALJ) which denied and dismissed his claim for workers' compensation benefits on the ground that Colorado has no jurisdiction over the claim. We set the order aside and remand for further proceedings.
The claimant was a truck driver employed by the respondent-employer (Mayflower). The employment contract between the claimant and Mayflower was entered into in the State of Indiana in 1989. The claimant was injured on December 5, 1991, in the State of Utah.
Based on this information, the ALJ concluded that Colorado lacks jurisdiction to consider the claim under principles set forth in Monolith Portland Cement v. Burak, 772 P.2d 688 (Colo.App. 1989). The ALJ relied on Burak's statement that the "jurisdictional prerequisites" to recovery of benefits "are that a substantial portion of the employee's work must be performed in Colorado, combined with either an injury in Colorado or an employment contract entered into in Colorado." Because the claimant stipulated that the employment contract originated in Indiana, and the injury in Utah, the ALJ concluded that it was irrelevant whether the claimant performed a substantial portion of his employment in the State of Colorado.
On review, the claimant contends that the ALJ misapplied the law in denying his claim for benefits. Specifically, the claimant asserts that his injury is covered by the "extra-territorial" provisions of § 8-41-204, C.R.S. (1994 Cum. Supp.). Because we conclude that the claimant should have been permitted to present evidence that he was "regularly employed" in Colorado at the time of the injury, we remand for further proceedings.
Section 8-41-204 provide as follows:
"If an employee who has been hired or is regularly employed in this state receives personal injuries in an accident . . . arising out of and in the course of such employment outside of this state, the employee . . . shall be entitled to compensation according to the law of this state. This provision shall apply only to those injuries received by the employee within six months after leaving this state . . ." (Emphasis added).
We have previously held that § 8-41-204 establishes Colorado jurisdiction over an out-of-state injury where the evidence proves that the claimant was hired in another state but was "regularly employed" in Colorado, and was injured within six months of leaving Colorado. In so doing, we distinguished Monolith Portland Cement v. Burak, and the cases cited therein, on the ground that those cases involved Colorado injuries, not out-of-state injuries. See Bryan v. Schneider National, Inc., W.C. No. 3-962-117, August 23, 1991.
Our decision in Bryan relied principally on our Supreme Court's opinion in State Compensation Insurance Fund v. Howington, 133 Colo. 583, 298 P.2d 963 (1956). In Howington, the Supreme Court stated that the predecessor to § 8-41-204, which was first enacted in 1941, provides an independent basis for extending workers' compensation coverage to employees hired in, "or regularly employed in Colorado, who receive injuries while employed outside this state . . . for the limited period provided" in the statute. 298 P.2d at 968. Moreover, the court indicated that the rule of "judicial decisions" was no longer effective in view of the 1941 statute. 298 P.2d 970. The court specifically stated that the case of United States Fidelity and Guaranty Co. v. Industrial Commission, 99 Colo. 280, 661 P.2d 1033 (1936), was "no longer applicable in Colorado." 298 P.2d at 969.
It is true, as the respondents point out, that the Court of Appeals relied on United States Fidelity and Guaranty Co. v. Industrial Commission in Monolith Portland Cement v. Burak, as well as Loffland Brothers Co. v. Industrial Commission, 714 P.2d 509 (Colo.App. 1985). However, both of these cases involve injuries occurring within the State of Colorado, and therefore, § 8-41-204 is not, on its face, applicable. In any event, Howington indicates that the principles enunciated in Burak, and previously in United States Fidelity and Guaranty Co., have no application where, as here, § 8-41-204 is directly applicable. Loffland Brothers v. Baca, 651 P.2d 431 (Colo.App. 1982) . Cf. RCS Lumber Co. v. Worthy, 149 Colo. 537, 369 P.2d 985 (1962) (applying predecessor to § 8-41-204, but adopting principles of United States Fidelity Guaranty Co. in determining whether claimant was "regularly employed" in Colorado).
We are unpersuaded by the respondents' argument that Burak is the "latest" decision, and therefore, binding upon us. State Compensation Insurance Fund v. Howington is a decision of the Supreme Court, and we are bound to follow it insofar as it conflicts with decisions of the Court of Appeals. However, since we believe that Howington is legally on point, and that Burak is factually distinguishable, we perceive no conflict.
It follows that the ALJ erred in determining, as a matter of law, that Colorado lacks jurisdiction over this claim. The ALJ should have permitted the claimant to present evidence establishing that he was "regularly employed" in Colorado, and was injured within six months of leaving the state. The matter is remanded for a hearing on this issue, and such further proceedings as may be necessary.
IT IS THEREFORE ORDERED that the ALJ's order, dated August 17, 1994, is set aside, and the matter is remanded for further proceedings consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
Copies of this decision were mailed July 13, 1995 to the following parties:
Bogdan Gordon, 8190 Miller Court, Arvada, CO 80005
Mayflower Transit, Inc., Attn: Connie Clark, P.O. Box 107, Indianapolis, IN 46206-0107
CLAS, Attn: Susan Culp, P.O. Box 1129, Carmel, IN 46032
CIGNA P C Co./Pacific Employer, P.O. Box 2941, Greenwood Village, CO 80150-0141
John C. Bowes, Esq., 6595 W. 14th Ave., Lakewood, CO 80214 (For the Claimant)
Ronald C. Jaynes, Esq. Art Lee, Esq., 455 Sherman St., #210, Denver, CO 80203 (For the Respondents)
By: _________________________