Opinion
W.C. No. 4-608-932.
July 21, 2005.
FINAL ORDER
The claimant and the respondent employer seek review of the order of Administrative Law Judge Harr (ALJ) dated January 20, 2005, which denied and dismissed the claim for compensation and which determined that the ALJ was without jurisdiction to adjudicate a dispute between the insurer and the employer concerning coverage. The claimant contends that the ALJ erred in construing § 8-41-204, C.R.S. 2004 as requiring the claimant's physical presence in Colorado prior to his injury in another jurisdiction. The respondent employer joins the claimant's argument in that regard and also contends that the ALJ erred in concluding that he lacked jurisdiction to resolve a coverage dispute between the employer and the insurer. We affirm the order insofar as it denied and dismissed the claim under § 8-41-204 and dismiss the petition to review the order insofar as it asserted a lack of jurisdiction to resolve the dispute between the employer and the insurer.
The ALJ's pertinent findings of fact are as follows. The respondent employer, Hathaway Lighting, Inc. (Hathaway), was a Colorado corporation that had contracted to install commercial light fixtures in schools, hospitals, and retail establishments. Hathaway had five crews of four employees each performing that work in various states. Hathaway hired the claimant, who is a resident of Washington, to work on a crew in Portland, Oregon. While performing that work he was injured when he fell off a ladder. The claimant did not work for Hathaway in Colorado, nor was he present at any time in Colorado since being hired by Hathaway.
Prior to hiring the claimant, the president of the company, Donald Hathaway, spoke with him by telephone, explaining the employer's hiring procedures and describing the documents required of the claimant. Hathaway sent various employment forms to the claimant, who completed and returned materials that included an employment application, a personal information form, a "personnel action notice," various forms of identification such as a Washington drivers' license, and employment eligibility verification forms required by the federal government as a prerequisite to the hiring of any individual. Although Hathaway would permit prospective employees to begin work on a conditional basis, the ALJ found that the employer considered compliance with federal law requiring verification of immigration status to be a condition precedent to the formation of a contract of hire. The ALJ found that verification of the applicant's immigration status was the last act necessary to complete the contract of hire, and that it occurred in Hathaway's office in Colorado.
The ALJ concluded that the contract of hire between the claimant and Hathaway was executed in Colorado and that, therefore, the claimant was a Colorado employee. However, based upon the finding that the claimant never performed any work in Colorado and applying the extra-territorial provisions of § 8-41-204, the ALJ concluded that Colorado lacked jurisdiction over the claim. The ALJ also concluded that, because he had denied and dismissed the claim, he lacked jurisdiction to adjudicate the coverage dispute between the employer and the insurer.
I.
The claimant and Hathaway first contend that the ALJ erred in concluding that § 8-41-204 requires that the claimant have been present in Colorado in order for jurisdiction to be conferred over the subsequent out-of-state injury. They argue that, where the claimant has never been in the state, it is sufficient for purposes of the statute that the injury occur within six months of the date of hire. We disagree.
Section 8-41-204 provides that:
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.
We have previously stated that § 8-41-204 sets forth the only circumstances under which an employer must provide coverage to an employee who is injured outside of the state. E.g., Rodenbaugh v. DEA Construction, W.C. No. 4-523-336 (Dec. 20, 2002), aff'd., Rodenbaugh v. Industrial Claim Appeals Office, No. 03CA0055 (Colo.App. Dec. 4, 2003) (not selected for publication).
In construing a statute, we must give the relevant words their plain and ordinary meanings, unless the result is absurd. Anderson v. Longmont Toyota, Inc., 102 P.3d 323 (Colo. 2004). Under the plain language of § 8-41-204 the injury must have occurred within six months after the employee left the state, unless the employer elected to extend coverage for a longer period of time. Contrary to the argument of the claimant and the employer, the plain language of the statute imposes a requirement that the claimant have been present in the state. Because it was undisputed that the claimant was not present in Colorado at any time relevant to the claim, the ALJ properly concluded that the requirements of § 8-41-204 were not satisfied.
Moreover, we do not view this interpretation as leading to an absurd result. In construing § 8-41-204, the court of appeals has observed that "Colorado has the power to extend the protection of its Workers' Compensation Act (Act) to citizens injured while performing such services because of its interest in the welfare and protection of its citizens and their dependents." Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861, 863 (Colo.App. 1996). Given this legislative purpose, it is neither absurd nor illogical to construe the plain meaning of the statute to require a physical presence in Colorado prior to "leaving this state. . . ."
Hathaway also argues that § 8-41-204 violates constitutional guarantees of due process and equal protection of the law. The employer correctly recognizes, however, that we lack jurisdiction to address a constitutional challenge to a statute. Kinterknecht v. Industrial Commission, 175 Colo. 60, 485 P.2d 721 (1971).
II.
Hathaway also argues that the ALJ erred in concluding that he lacked jurisdiction to adjudicate a dispute between the employer and the insurer regarding construction of the insurance contract. That portion of the ALJ's order is not presently final and reviewable.
As we understand the employer's argument, Hathaway asserted at the hearing that, in the event the claim was denied under § 8-41-204, it intended to argue at some point in the future that the insurer was estopped by its past conduct from withholding benefits. Counsel for the employer stated at the outset of the hearing that the employer has "a second case waiting in the wings to present should the Court find that the extra territorial provision don't (sic) apply." Transcript p. 5. He further explained that the bases for this "second case" were the principles of estoppel and the rule of reasonable expectations. At the close of the hearing counsel for the employer again stated that the employer intended "to argue that jurisdiction remains to consider it's (sic) claim that it has coverage in addition to the gap provided by the act by estoppel." Transcript p. 76. Counsel emphasized that that argument was "in the alternative," and that it "depend[ed] on [the] ruling" regarding the compensability of the claim under § 8-41-204. Transcript p. 77. He also stated that the alternative argument was not tried at the hearing that had just been held: "[I]t wasn't presented by these facts." Transcript p. 77.
Section 8-43-301(2), C.R.S. 2004 provides that any dissatisfied party may file a petition to review "an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty." An order which does not satisfy one of the finality criteria of this statute is interlocutory and not subject to immediate review. Natkin Co. v. Eubanks, 775 P.2d 88 (Colo.App. 1989). Under this statute the order must be one that finally disposes of the issues presented. Bestway Concrete v. Industrial Claim Appeals Office, 984 P.2d 680 (Colo.App. 1999).
Here the ALJ's order is advisory, since its legal effect depends upon the employer's future decision to advance the argument. The employer made clear at the hearing that the decision whether to do so depended upon the final outcome of the issue under § 8-41-204. Moreover, we note that the ALJ's order in this regard was not a purely legal one based upon the pleadings. In the introductory portion of his order the ALJ noted that the insurer had moved for a "directed verdict" on the issue of jurisdiction over the employer's alternative argument. However, the ALJ declined to rule on that motion, stating instead that the issue would be determined "on the merits." However, it was apparently undisputed that the issue was not tried at the hearing and was being reserved for possible future adjudication. Under these circumstances the ALJ's order in this regard was advisory and is not presently reviewable.
IT IS THEREFORE ORDERED that the ALJ's order dated January 20, 2005 is affirmed insofar as it denied and dismissed the claim. The petition to review the order insofar as it asserted a lack of jurisdiction over a future dispute is dismissed without prejudice.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Curt Kriksciun
Norman Tyrell, Bothell, WA, Donald Hathaway, Hathaway Lighting, Inc., Brighton, CO, Legal Department, Pinnacol Assurance — Interagency Mail John M. Connell, Esq., Denver, CO, (For Claimant).
Margaret A. Nielsen, Esq. and T. Paul Krueger, II, Esq., Denver, CO, (For Respondent Pinnacol Assurance).
Michael P. Serruto, Esq., Denver, CO, (For Respondent Hathaway Lighting, Inc.)