Opinion
W.C. No. 4-272-150
October 22, 1996
FINAL ORDER
The respondents, Adams Sons Trucking, Inc.,(Adams), and its insurer, the Liberty Mutual Insurance Company seek review of an order of Administrative Law Judge Henk (ALJ) which requires the payment of workers' compensation benefits. The respondents contend that the ALJ erroneously determined that Colorado has jurisdiction over the claim. We disagree, and therefore, affirm.
The matter came before the ALJ on the following stipulated facts. The claimant suffered disabling injuries in Pueblo, Colorado on October 9, 1995, during the course of his employment as a long haul truck driver for Ted Collier (Collier). The claimant was hired by Collier in Texas to work for Adams. Collier is uninsured for workers' compensation and Adams is the statutory employer. Adams' main office is located in Nebraska, but Adams also maintains an office in Denver, Colorado.
The only disputed issue for resolution by the ALJ was whether Colorado has subject matter jurisdiction over the claim. Based upon the claimant's testimony and the documentary evidence, the ALJ found that the claim is governed by the Colorado Workers' Compensation Act. In so doing, the ALJ cited RCS Lumber Co. v. Worthy, 149 Colo. 537, 369 P.2d 985 (1962) ; Monolith Portland Cement v. Burak, 772 P.2d 688 (Colo.App. 1989); and Loffland Bros. Co. v. Industrial Commission, 714 P.2d 509 (Colo.App. 1985) for the proposition that subject matter jurisdiction is established if the claim involves "injuries occurring within the State of Colorado." The ALJ further determined that because the claimant's injuries occurred in Colorado, subject matter jurisdiction is not dependent on proof that the claimant performed a "substantial portion" of his employment in Colorado combined with either an injury or an employment contract in Colorado, as required by Denver Truck Exchange v. Perryman, 134 Colo. 586, 307 P.2d 805 (Colo.App. 1957), and RCS Lumber Co. v. Worthy, supra.
On review, the respondents contend that the ALJ misapplied the law in finding that Colorado has jurisdiction over the claim. Specifically, the respondents assert that the "three-pronged" jurisdictional test set forth in RCS Lumber v. Worthy, supra, and Denver Truck Exchange v. Perryman, supra, applies to injuries occurring both in and outside the State of Colorado. Accordingly, the respondents argue that the ALJ's order is contrary to the applicable law. We find no error.
Admittedly, the ALJ erroneously assumed that the three-pronged jurisdictional test set forth in RCS Lumber v. Worthy, supra, and Denver Truck Exchange v. Perryman, supra, does not apply to injuries suffered within the state of Colorado, and thus, does not apply to the facts of this claim. See United States Fidelity Guaranty Co. v. Industrial Commission, 99 Colo. 280, 61 P.2d 1033 (1936); Monolith Portland Cement v. Burak, supra. (involving Colorado jurisdiction where the claimant suffered fatal injuries in Colorado while driving to work in Wyoming); cf. Moorhead Machinery Boiler Co. v. Del Valle, ___ P.2d ___ (Colo.App. No. 95CA2135, September 5, 1996) (discussing the statutory criteria for exercising jurisdiction over injuries occurring outside of Colorado). However, as the respondents concede, the ALJ further determined that, even if the three-pronged jurisdictional test is applicable , the claimant sustained his burden to prove that he performed substantial employment in Colorado. This determination, together with the stipulated fact that the claimant was injured in Colorado, support the ALJ's conclusion that Colorado has jurisdiction over the claim. Consequently, the ALJ's order is consistent with the applicable law, and the ALJ's error is harmless. Section 8-43-310 C.R.S. (1996 Cum. Supp.); A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988) (error which is not prejudicial will be disregarded).
Alternatively, the respondents contend that the ALJ's findings of fact are insufficient to permit appellate review of their contention that the claimant failed to establish substantial employment in Colorado. We reject this argument.
The ALJ is not held to a crystalline standard in articulating her findings of fact. George v. Industrial Commission, 720 P.2d 624 (Colo.App. 1986). Rather, the ALJ's order is sufficient if we are able to ascertain the basis of the order and the evidence the ALJ found determinative. Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992).
Here, the ALJ found that the claimant "drove for Adams in Colorado and other states." (Finding of Fact 6). The ALJ also found that the "Claimant was often dispatched by the Adam's office in Denver, Colorado. (Finding of Fact 7). Further, the ALJ determined that "the Claimant's Driver's Logs demonstrate that from August 1, 1995 through October 9, 1995, at least seven of Claimant's trips for Adams either began in Colorado or ended in Colorado." (Finding of Fact 8). The ALJ's Conclusions of Law, indicate that the ALJ considered Findings of Fact 7 and 8 determinative of the fact that the claimant sustained his burden to prove substantial employment in Colorado. See (Conclusion of Law 1). Consequently, we have no difficulty ascertaining the basis for the ALJ's order.
The respondents further arguments to the contrary do not alter our conclusion. Except as reflected in the claimant's Driver's Logs, the respondents did not present any specific evidence concerning the number of days the claimant worked in and out of Colorado, the number of runs he made in and out of Colorado, the duration of the runs, the location where maintenance was done and where the claimant's work records were maintained. Nor do the respondents' assert how such evidence would have affected the ALJ's factual determinations. Therefore, the ALJ's failure to make specific findings of fact on these issues does not compel us to remand the matter for additional findings.
Furthermore, because the question of whether the claimant sustained his burden to prove substantial employment in Colorado was one of fact, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.). Here, the ALJ's determination is supported by the claimant's testimony, and the "Driver's Logs." (Ranney depo., pp. 39-40). For example, the claimant stated that one-fourth of the loads he hauled for Adams were delivered in Colorado. (Ranney depo., p. 13). He also stated that his injury occurred while he was chaining down a load at CFI in Pueblo, where he had been on several prior occasions during his employment for Adams. (Ranney depo., p. 39).
Moreover, we reject the respondents' argument that the ALJ erroneously focused on the employer's activities in Colorado, instead of the claimant's activities, in finding that the claimant had substantial employment in Colorado. Admittedly, the fact that Adams maintained an office in Denver, Colorado and dispatched drivers from that office reflects the employer's activities in Colorado. However, given the undisputed fact that the claimant is a Colorado resident, his testimony that he was dispatched to work from the Denver office, also supports the ALJ's findings concerning the claimant's employment in Colorado.
Similarly, the fact that many of the claimant's trips began or ended in Colorado might be attributable to the claimant's residency in Colorado. However, the ALJ expressly found that at least two of the claimant's trips between August and October 1995, began or ended in Nebraska. Consequently, the ALJ's finding reflects her determination that the claimant's Colorado residency did not necessarily result in all of his work beginning or ending in Colorado. It follows that the evidence that seven of the claimant's trips between August and October originated or ended in Colorado supports her finding that the claimant performed a substantial portion of his employment in Colorado. See RCS Lumber v. Worthy, 369 P.2d at 987 (regularity of work in Colorado is pertinent to whether there is "substantial" employment in Colorado); Masters v. Viking Freight System, W.C. No. 4-119-690, March 21, 1995, citing Johnson v. United Airlines, 550 S. 2d 134 (Fla.App. 1st Dist. 1989) (fact that airline flight attendant spent most of her time flying outside of Florida did not mean that her employment was not "principally localized" in Florida where she was based).
To the extent that the respondents have made other arguments, they are not persuasive.
IT IS THEREFORE ORDERED that the ALJ's order dated June 21, 1996, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for 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 this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).
Copies of this decision were mailed October 22, 1996 to the following parties:
David Ranney, 3137 Skyview Ave., Pueblo, CO 81008
Adams Son Trucking, Inc., Attn: Don Adams, P.O. Box 233, Sidney, NE 69162
Ted Collier d/b/a Diamond Cattle Co., P.O. Box 6, Spearman, TX 79001
CF I Steel, L.P., Attn: Nancy Colvin, P.O. Box 316, Pueblo, CO 81002
Liberty Mutual Ins. Co., Attn: Kelle Walker, P.O. Box 3539, Englewood, CO 80155-3539
Joseph W. Ruppert, Esq., 226 West B Street, P.O. Box 737, Pueblo, CO 81002 (For the Claimant)
Scott M. Busser, Esq., 300 S. Jackson St., #570, Denver, CO 80209 (For the Liberty Respondents)
BY: _______________________