Opinion
W.C. No. 4-370-776
December 17, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Stuber (ALJ), which determined that Colorado has jurisdiction to adjudicate the claim, and awarded the claimant medical benefits. The respondents contend that the claimant's injury, which occurred in Texas, is not subject to Colorado jurisdiction because the claimant was not a citizen of Colorado, and because the claimant was not sent out of Colorado for "temporary work." Further, the respondents assert that the claimant was "laid off" in Colorado, and was not "rehired" until she reached Texas. We affirm.
The claimant's husband operated a bulldozer for the respondent-employer (Jomax). In September, 1996, the claimant's husband was operating the bulldozer in Colorado. On September 3, 1996, Jomax hired the claimant as a laborer to assist her husband. The contract for hire was made in Colorado. At the time of the hiring the claimant completed substantial paperwork and was required to take a drug test.
By November 1, 1996, the Jomax project in Colorado was nearly finished. Three employer witnesses, a "field secretary," a construction superintendent, and an office manager testified that the claimant and her husband were then "laid off." Nevertheless, the construction superintendent also testified that a job was soon to begin in Texas, and the claimant's husband would have work if he "showed up . . . when that job started." The field secretary testified that if the claimant's husband had work, the claimant would also have work in Texas. (Tr. p. 81).
The claimant denied being "laid off" by the employer. To the contrary, the claimant testified that the superintendent advised her that she would have employment in Texas, but she also understood her per diem would decrease.
The claimant was began work in Texas in November 1996. At that time, the claimant was not required to fill out any additional paperwork, and Jomax was unable to produce evidence that the claimant filled out a new W-4 form. The claimant sustained a back injury on December 11, 1996, while performing her job in Texas.
Under these circumstances, the ALJ found that the claimant was "regularly employed" in Colorado, and that she sustained an injury within six months of leaving the state. Thus, the ALJ concluded that Colorado has jurisdiction over the Texas injury pursuant to § 8-41-204, C.R.S. 1998.
Alternatively, the ALJ "assumed" that the claimant was "laid off" by Jomax on November 1, 1996. Despite this assumption, the ALJ found that the claimant was "rehired" in Colorado before going to Texas. Therefore, he concluded that Colorado jurisdiction exists because there was a contract for hire in Colorado, and the claimant was injured within six months of leaving the state. In support of this conclusion, the ALJ found that claimant "had a reasonable expectation of resumed employment in Texas, as long as she and her husband arrived at the job site before work commenced."
I.
On review, the respondents first contend that the ALJ misapplied § 8-41-204 because the claimant was not a "Colorado citizen" sent out of Colorado for "temporary or occasional work." Relying on State Compensation Insurance Fund v. Howington, 133 Colo. 583, 298 P.2d 963 (1956), and Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996), the respondents assert that § 8-41-204 (extraterritorial statute) does not apply to claimants "regularly employed" in Colorado unless they are also citizens of Colorado, and unless they are sent out of Colorado on a "temporary or occasional basis." The respondents point out that the claimant was not a Colorado citizen or resident, nor was her travel to Texas temporary or occasional. We are not persuaded.
Section 8-41-204 provides as follows:
"If an employee who has been hired or is regularly employed in this state receives personal injuries in an accident or an occupational disease arising out of and in the course of such employment outside of this state, the employee, or such employee's dependents in case of death, 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, unless, prior to the expiration of such six month period, the employer has filed with the division notice that the employer has elected to extend such coverage for a greater period of time."
The words and phrases in a statute should be given their plain and ordinary meaning unless the result is absurd. It is unnecessary to resort to interpretive rules of statutory construction if the statutory language is clear and unambiguous. Snyder Oil Co. v. Embree, 862 P.2d 259 (Colo. 1993). Here, we agree with the claimant that the plain language of § 8-41-204 is unambiguous. The statute does not condition jurisdiction on a finding that a "regularly employed" worker is a "citizen" of Colorado in order for jurisdiction to attach to an out of state injury. Neither does the statute require a finding that, where an employee is sent out of state, that the work be "temporary or occasional."
It is true that State Compensation Insurance Fund v. Howington, and Moorhead Machinery Boiler Co. v. Del Valle, contain statements indicating that one legislative purpose underlying the extraterritorial statute is to protect Colorado citizens or residents who are sent out of state on temporary jobs. However, we do not read either of these cases as restricting the reach of the extraterritorial statute to Colorado citizens and employees sent out of state temporarily on a temporary basis.
Although the primary statutory purpose of the extraterritorial statute may be to protect Colorado residents or citizens, the statutory language is also designed to delineate a test which establishes sufficient Colorado contacts with an out of state injury in order for Colorado to exercise jurisdiction. In fact, State Compensation Insurance Fund v. Howington states that the court's interpretation of the extraterritorial statute did not violate the public policy of Colorado because "the legislature has full authority to provide, and has provided, for out of state coverage of employees under conditions where Colorado would have jurisdiction over at least part of the subject matter." Id., 298 P.2d at 969; see also, 9 Larson's Workers' Compensation Law, § 86.35 (weighing of interests irrelevant in determining whether a state has sufficient contact with a workers' compensation injury to apply its own law).
The General Assembly has determined that Colorado has sufficient interest in an out of state injury if the worker was regularly employed in Colorado and was injured within six months of leaving the state. Colorado's interest is in the employment relationship itself, regardless of the citizenship or residency of the claimant, and regardless of whether the claimant ever intended or expected to return to Colorado. Thus, we decline to adopt the respondents' proposed construction of the extraterritorial statute.
II.
The respondents apparently do not dispute the ALJ's finding that the claimant was "regularly employed" in Colorado for purposes of the extraterritorial statute. However, the respondents contend that the statute does not afford jurisdiction because the ALJ found that the claimant was laid off in Colorado on November 1, 1996, and was "rehired" in Texas later in the month. We disagree with the respondents' interpretation of the ALJ's order.
An ALJ is not held to a standard of absolute clarity when expressing findings of fact and conclusions of law. It is sufficient that the ALJ's conclusions of law indicate the basis of the order, and that the order contains findings of fact showing what evidence the ALJ considered determinative of the issues. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
It is true, as the respondents point out, that Finding of Fact 3 states that the Jomax witnesses testified the claimant was "laid off" on November 1. Nevertheless, the remaining findings of fact demonstrate that the ALJ was not persuaded by this testimony. The ALJ found that the claimant and her husband were told that they would have additional work if they appeared in Texas. Further, the ALJ found that neither the claimant nor her husband was required to fill out additional paperwork in Texas, and that the employer could not produce "new W-4 forms" indicating that the claimant and her husband were "rehired" in Texas.
Moreover, the ALJ's conclusions of law are worded in the alternative, and they demonstrate his conclusion that Colorado has jurisdiction under both the "regular employment" and contract for hire provisions of the extraterritorial statute. If the ALJ had found that the claimant was laid off in Colorado, Conclusion of Law 2 would be superfluous. The ALJ's finding that Colorado has jurisdiction because the claimant was "regularly employed" in Colorado is supported by substantial evidence, and it must be upheld on review. Section 8-43-301(8), C.R.S. 1998.
III.
The respondents also attack the ALJ's alternative holding that if the claimant was terminated on November 1 she was "rehired" in Colorado before traveling to Texas. The respondents argue that the claimant's mere expectation of employment in Texas was insufficient to create a contract of hire under the extraterritorial statute. We are not persuaded.
Generally, formation of a contract requires competent parties, subject matter, legal consideration, mutuality of agreement, and mutuality of obligation. The place where a contract is made is determined by the parties' intention, and is usually the place where the offer is accepted, or where the last act necessary to a meeting of the minds or to complete a contract is performed. Denver Truck Exchange v. Perryman, 134 Colo. 586, 307 P.2d 805 (1957).
However, as pointed out in Moorhead Machinery Boiler Co. v. Del Valle, supra, determining where a contract was formed requires us to consider the purpose of the determination. In Del Valle, the court concluded that an overly technical application of the law of contract formation is not warranted where the issue is jurisdiction under the extraterritorial statute. Thus, the Del Valle court held that Colorado had jurisdiction over a Wyoming injury where the claimant was contacted for work through a Colorado union hiring hall, but could have been rejected for employment when he reached the Wyoming job site. The court emphasized that the employer regularly used the Colorado hiring hall when seeking workers, and that the terms and conditions of the job were known and communicated to the claimant before he left Colorado for Wyoming.
Here, the construction superintendent admitted that in the pipeline construction business it is common for operators, such as the claimant's husband, to follow an employer from job to job because the operator knows he will have employment. (Tr. p. 101). Further, the superintendent admitted that ninety percent of the people employed on the Colorado Job worked on the Texas job. The field secretary testified that it was understood that the claimant would have a job if her husband had a job. (Tr. p. 81). The claimant and her husband testified that they understood they had a job in Texas, and understood the pay. (Tr. pp. 19, 37-38).
Under these circumstances, the record supports the ALJ's conclusion that, if the claimant was actually laid off in Colorado, she was "rehired" prior to traveling to Texas. The record supports an inference that, as a general policy, Jomax encouraged good operators and helpers to move from job to job with the company. Further, the general expectations and pay structure for the Texas job were established prior to the time the claimant and her husband left Colorado. Finally, there is scant documentary evidence supporting the respondents' position that a new contract was created in Texas. Thus, there are sufficient indicia of contract formation in Colorado to support a finding of jurisdiction under § 8-41-204. Moorhead Machinery Boiler Co. v. Del Valle, supra.
IT IS THEREFORE ORDERED that the ALJ's order dated July 23, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed December 17, 1998 to the following parties:
Scarlett L. Lanoy, P.O. Box 2113, Woodward, OK 73802
William Duryee, Jomax Construction Company, Inc., P.O. Box 701, Great Bend, KS 67530
Kathy Redmond, St. Paul Fire Marine Insurance, P.O. Box 441565, Aurora, CO 80044-1565
James L. LeClair, Esq., 155 S. Madison, #330, Denver, CO 80209 (For Claimant)
Michael J. Barbo, Esq., 12250 E. Iliff Ave., #308, Aurora, CO 80014-1253 (For Respondents)
By: ___________