Opinion
W.C. No. 4-523-336
December 20, 2002
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Stuber (ALJ) which denied and dismissed the claim for workers' compensation benefits. The claimant contends the ALJ erred in determining that Colorado lacks subject matter jurisdiction because the alleged injury occurred in Idaho. We affirm.
The ALJ's findings of fact may be summarized as follows. The claimant is a resident of Colorado Springs, Colorado. In November 1998 the claimant was first hired by the respondent-employer (DEA) to work as a lineman. The claimant performed these services in the Denver area until September 1999, when he resigned for personal reasons. The "main offices" of DEA are located in Thornton, Colorado.
In October 1999 the claimant was rehired by DEA, and it is undisputed that the contract for hire occurred in Colorado. The claimant immediately requested that he be transferred, and DEA assigned the claimant to a job as a foreman in Idaho Falls, Idaho. The claimant received a pay increase and relocation expenses in exchange for his agreement to work full-time in Idaho. Although the claimant rented an apartment in Idaho, he also maintained his residence in Colorado Springs.
The claimant was employed in Idaho from October 1999 through his termination in August 2001. During this 22 month period, the claimant and his supervisor made "several" round trips to Colorado. The ALJ found that "up to about three" of these trips were to obtain equipment for use on the Idaho job. The claimant was compensated for these trips. The remaining trips were personal in nature.
While working in Idaho DEA addressed the claimant's checks to his Colorado address, and deducted Colorado income tax. However, the checks themselves were delivered to the claimant in Idaho. At some point, the claimant was laid off for one month and received Colorado unemployment benefits.
On April 14, 2001, the claimant developed a hernia as a result of heavy lifting on the Idaho job. The issue for determination was whether Colorado has subject matter jurisdiction to award benefits under the Colorado Act.
Citing Denver Truck Exchange v. Perryman, 134 Colo. 586, 307 P.2d 805 (1957), the ALJ held that, as a general matter, Colorado does not have jurisdiction over a claim for an "out-of-state injury" unless the claimant proves two of the following three criteria: (1) a contract of employment created in Colorado; (2) employment in Colorado under a contract created outside the state; (3) substantial employment in Colorado. However, the ALJ also concluded that § 8-41-204, C.R.S. 2002, establishes an exclusive "exception" to the rule in Perryman where the contract of employment is created in Colorado and the claimant sustains an out-of state injury. In such cases, the claimant must sustain an injury within six months of leaving the state. The ALJ found jurisdiction does not exist under the statute because the claimant was not injured within six months of leaving Colorado.
The ALJ also held that, in the event § 8-41-204 does not create the "exclusive definition of Colorado jurisdiction," the claimant failed to satisfy the jurisdictional criteria established in Perryman. Specifically, the ALJ found that the claimant's "regular employment" was as a lineman in Idaho, and the "few trips" to Colorado for retrieval of equipment did not constitute substantial employment in Colorado.
On review, the claimant first contends that § 8-41-204 does not establish the exclusive test for Colorado jurisdiction over out-of-state injuries. Instead, the claimant argues that the statute establishes a "conclusive presumption" of jurisdiction if a claimant hired or regularly employed in Colorado is injured within six months of leaving the state, but does not prevent an ALJ from determining jurisdiction based on the specific facts of the case in the event of "long-term, remote, or transient assignments." The claimant argues that because the claimant is a Colorado resident, the employer has its principal place of business in Colorado, the employer withheld Colorado income tax, and the claimant received Colorado unemployment benefits, the weight of the evidence supports a finding of Colorado jurisdiction. We find no error.
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 the state, the employee . . . shall be entitled to compensation according to the laws 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 claimant's argument notwithstanding, this statute establishes the exclusive grounds under which Colorado may take jurisdiction of an injury which occurs outside of the state. As noted in State Compensation Insurance Fund v. Howington, 133 Colo. 583, 298 P.2d 963 (1956), prior to enactment of the statute in 1941, jurisdiction over out-of-state injuries was governed by the "rule of judicial decisions," which required a Colorado employment contract, substantial work in Colorado, and only temporary employment in a foreign jurisdiction. However, the Howington court ruled that the "legislature having spoken, the rule of judicial decisions is no longer in effect in Colorado since the enactment of the 1941 statute." (Emphasis in original). In Howington, the statutory requirements for jurisdiction were established because the claimant was hired in Colorado and sustained an injury within six months of leaving the state. 298 P.2d at 970. It follows that judicial pronouncements concerning jurisdictional criteria were supplanted by the 1941 statute, and there is no judicial or statutory authority for the type of balancing test suggested by the claimant. Cf. Tatlock v. Resort Sports Network, W.C. No. 4-214-040 (June 5, 1996).
We do not view Perryman as creating or authorizing the type of judicial balancing test contemplated by the claimant. Admittedly, Perryman might be read as creating a judicial requirement that, even if the claimant is hired in Colorado, jurisdiction is still dependent on a showing of "substantial employment" in Colorado. Such a requirement would not be consistent with § 8-41-204, and would be inconsistent with Howington. However, we do not read Perryman as creating a new "rule of judicial decisions" regarding jurisdiction over out- of-state injuries.
First, Perryman did not involve a contract for hire created in Colorado, as did Howington. Moreover, Perryman expressly acknowledges Howington. 307 P.2d at 811. Finally, Perryman indicates that application of the three criteria (listed above) is subject to the "statutory time limits on out-of-state employment." 307 P.2d at 812. Presumably, the time limits are those established by the predecessor to § 8-41-204. Hence, we read Perryman as consistent with § 8-41-204, not authority for judicial creation of jurisdictional criteria. See Moorhead Machinery and Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996).
This conclusion is supported by the holding in RCS Lumber Co. v. Worthy, 149 Colo. 537, 369 P.2d 985 (1962). In Worthy the decedent was hired in another state, and was killed in New Mexico after briefly venturing into Colorado on employment-related duties. The court, applying the predecessor to § 8-41-204, determined that the portion of the statute pertaining to a worker hired in Colorado was inapplicable, and the issue was whether the decedent's "services on the day of the accident amounted to regular employment in Colorado as the alternative test set forth by the statute." (Emphasis added). The Worthy court then incorporated the Perryman criteria, and stated that the question was whether the decedent's trip to Colorado was sufficient to establish "substantial employment in Colorado" to a sufficient degree to meet the "statutory requirement of `regular' employment." 369 P.2d at 987.
Thus, we hold that § 8-41-204 establishes the only circumstances under which Colorado may take jurisdiction over an out-of-state injury. The claimant must either be hired in Colorado and sustain an injury within six months of leaving the state, or be regularly employed (as amplified by Perryman and Worthy) and injured within six months of leaving the state. There is no statutory authority for the type of wide-ranging balancing test proposed by the claimant, and we may not read such a test into the statute. Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, 26 P.3d 546 (Colo.App. 2001) (court may not read non-existent provision into statute). Moreover, the claimant has cited no authority which persuades us that Colorado law contemplates a balancing test for injuries occurring outside the six-month window created by the statute.
The claimant next argues that even if § 8-41-204 controls, the ALJ erred in ruling that for employees hired in Colorado the six month period runs from the date of the claimant's initial departure from the state rather that the date of the most recent departure. The claimant asserts this error is significant because the ALJ found that "between April of 2000 and April 2001" the claimant was in Colorado on several occasions to obtain tools. The claimant cites Employers' Liability Assurance Corp. v. Industrial Commission, 147 Colo. 309, 363 P.2d 646 (1961), as authority for his argument.
We note that the ALJ's findings of fact must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2002. Further, the claimant had the burden of proof to establish the jurisdictional criteria under the statute. RCS Lumber Co. v. Worthy, supra.
It is true that Employers' Liability Assurance holds that if a claimant is hired in Colorado, the statute contemplates the six month period runs from the date of departure following the most recent employment-related visit to Colorado. However, the claimant's assertion notwithstanding, the ALJ did not make any finding whatsoever concerning when the claimant most recently visited Colorado on employment-related business. Moreover, our review of the record does not reveal any specific evidence on this point, and the ALJ would have speculated if he had entered any such finding. Thus, the record would not support a plausible inference that the claimant visited Colorado on employment-related business within six months of April 14, 2001. (Tr. Pp. 53, 78, 100, 119-120). It follows the claimant failed to meet the burden of proof under the statute as interpreted by Employers' Liability Assurance.
The claimant's final argument is the ALJ erroneously found that he did not engage in substantial or regular employment in Colorado. Again, we find no error.
Because, as we have held, § 8-41-204 provides the sole criteria for Colorado jurisdiction over out-of-state injuries, even if the claimant could prove he was "regularly employed" in Colorado he would still have to prove he was injured within six months after last leaving the state on employment-related business. For the same reasons stated above, we conclude that he failed to do so.
However, even if it were determined that Perryman creates or contemplates jurisdictional criteria which are independent of the statute (and we disagree with that proposition), the evidence establishes the claimant did not engage in "substantial employment" in Colorado. The question of whether there was substantial employment is usually one of fact for the ALJ. See RCS Lumber Co. v. Worthy, supra; Pfuhl v. Prime, Inc., W.C. No. 4-215-435 (February 16, 1995). Substantial evidence is evidence which would support a reasonable belief in the existence of a fact without regard to conflicting evidence and inferences. Ackerman v. Hilton's Mechanical Men, Inc., 914 P.2d 524 (Colo.App. 1996).
Here, as the ALJ found, the claimant was employed in Idaho, on a full-time basis, for 22 months. The claimant visited Colorado on employment-related business on only three occasions during this time span. This evidence fully supports the ALJ's finding the claimant was not regularly employed in Colorado, and the fact that some evidence might support a contrary finding does not does not afford any basis for relief on appeal. Cf. RCS Lumber Co. v. Worthy, supra.
IT IS THEREFORE ORDERED that the ALJ's order dated June 6, 2002, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Robert M. Socolofsky
NOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe Street, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed December 20, 2002 to the following parties:
Mitchell Rodenbaugh, 3114 N. Arcadia St., Colorado Springs, CO 80907-5543
DEA Construction, 9101 N. Pearl St., #300, Thornton, CO 80229-4354
Twin City Fire Insurance Co., P. O. Box 4626, Houston, TX 77210
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
Bradley R. Unkeless, Esq., 7670 S. Chester St., #300, Englewood, CO 80112 (For Respondents)
By: A. Hurtado