Opinion
W.C. No. 4-745-218.
May 15, 2009.
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated December 1, 2008 that determined the claim was compensable, generally awarded medical benefits, and ordered the insurer liable for proposed facial surgery. We affirm.
The claimant applied for a position in Colorado as a "cross-utilized" agent with SkyWest. The application process included submitting an online application, undergoing a series of interviews, completing criminal background checks including FBI fingerprinting, drug tests, written examinations, background checks for the Federal Aviation Administration, security clearances by the Transportation Security Administration, and a physical agility test. The claimant was at SkyWest's training center in Salt Lake City, Utah participating in a physical agility test when she was injured. An applicant is paid for the application process when the applicant completes the process and is selected for employment. Payment for the application process, including the process in Utah, is considered a "bonus."
The ALJ determined that at the time the claimant was injured she was under an implied contract of employment. The ALJ determined that the implied contract existed because if the claimant successfully completed the required tests and checks she would be hired by SkyWest. The ALJ concluded that the claimant was an employee when injured, and the claim was compensable and ordered that benefits be paid. The respondents bring this appeal arguing that the ALJ erred in determining that a pre-employment applicant who is injured during a pre-employment test is under an "implied" contract of hire.
The respondents contend that the ALJ erred in not following Younger v. City and County of Denver 810 P.2d 647 (Colo. 1991). We agree that matter is controlled by Younger, but it is our view that despite the respondents' arguments the ALJ's determination is consistent with Younger.
In Younger a police communications clerk was injured during a pre-employment physical agility test for the position of police officer and she sought benefits from the police department. Had the claimant passed the test she still would not have been guaranteed employment. The Supreme Court of Colorado, emphasizing the contract of hire concept, held that there was no mutual agreement between the claimant and the police department that was sufficient to create an employer-employee relationship.
The Workers' Compensation Act (Act) currently defines "employee" in 8-40-202(1)(b) [and in subsection(a)(I)(A) regarding public employees], C.R.S. 2008, as "[e]very person . . . under any contract of hire, express or implied . . .". The statute provides a similar definition regarding public employees, which also includes those acting under an appointment. Section 8-40-202(1)(a)(I)(A). Thus, in relevant part, this is the same statutory definition of employee that was before the court in Younger when it examined the issue of injuries occurring during try-out periods and physical examinations before hiring. The court concluded that without a contractual obligation, an employer-employee relationship did not exist which would support a claim for workers' compensation benefits.
However, in Younger, the court carefully noted that successful completion of the application process did not guarantee employment as a police officer and therefore found that there was no mutual agreement between the employer and the claimant sufficient to create an employer-employee relationship that would justify an award of workers' compensation benefits. In contrast here the ALJ specifically found that if the claimant successfully completed the required tests and checks she would be hired by SkyWest and would receive a "bonus" for her attendance in Utah. Therefore, in our opinion the ALJ's determination that the claimant was an employee when injured is consistent with the holding in Younger.
The respondents contend the ALJ erred in determining that a contract of hire existed between the claimant and SkyWest because SkyWest "expressly" rejected the creation of a contract of hire with the claimant and therefore no contract of hire could exist between the parties. We are not persuaded that the ALJ erred in determining that an implied contract of hire existed.
When a claim is filed under the Act, the burden of proof is upon the claimant to prove that she was an employee by showing the existence of a contract of hire. Hall v. State Comp. Ins. Fund 154 Colo. 47, 387 P.2d 899 (1963). The essential elements of a contract are competent parties, subject matter, legal consideration, mutuality of agreement, and mutuality of obligation. Aspen Highlands Skiing Corp. v. Apostolou, 866 P.2d 1384 (Colo. 1984). Despite the application of the general law of contracts to this issue, however, the court of appeals has stated that in some circumstances it is only necessary that the "fundamental elements" of a contract be present. Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861, 864 (Colo.App. 1996), abrogated on other grounds, Horodyskyj v. Karanian, 32 P.3d 470 (Colo. 2001). In Moorhead, the court noted that when determining the application of workers' compensation law, a technical application of the 'contract of hire' requirement is not appropriate. In reaching this conclusion the court quoted with approval a passage from Larson's treatise stating that the realities of the employment relationship were more important in this determination than the "technicalities" of contract law, especially where the hiring practices of a particular employment warranted such treatment. See Moorhead Machinery Boiler Co., supra. (quoting 1A A. Larson, Workmen's Compensation Law § 26.22 at 5-325 (1995) (it is necessary "[to subordinate] contract law technicalities to the reality of the [employment] relationship existing from the time the claimant [began] his journey toward the job pursuant to the overall-contract governing the way hiring is done in this particular employment").
Here, the respondents cite numerous pieces of evidence in the file that suggest that a contract of hire did not yet exist between the parties at the time of her injury because SkyWest did not consider the claimant an employee before her completion of the application process. However, the question of whether the claimant has proven the existence of a contract for hire is one of fact for determination by the ALJ. Rocky Mountain Dairy Products v. Pease, 161 Colo. 216, 422 P.2d 630 (1967). Because this question is factual in nature, we are bound by the ALJ's determinations in this regard if they are supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2008; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Substantial evidence is probative evidence, which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony or contrary inferences. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985). The substantial evidence standard requires that we view evidence in the light most favorable to the prevailing party, and defer to the ALJ's assessment of the sufficiency and probative weight of the evidence. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Under the facts as found by the ALJ and, given the court's instruction in Younger, we perceive no error in the ALJ's determination that a contract of hire existed between SkyWest and the claimant. The ALJ found that the claimant was injured during a physical agility test and had the claimant passed the test and successfully completed the other tests and checks she would be hired. In determining that the claimant in Younger had "no mutual agreement . . . sufficient to create an employer-employee relationship" the court made the following observation: "At no time during the application process was Younger promised employment . . ., even if she passed all the requisite tests." Younger, 810 P.2d at 653. As we read Younger, under these circumstances there was a mutual agreement between the claimant and SkyWest that was sufficient to create an employer-employee relationship. Therefore, contrary to the respondents' assertions, in our view the ALJ did make sufficient findings of employment to support his conclusion that a contract of hire had been formed between the parties.
We further note that there are other matters of record, not specifically found by the ALJ in his order, that indicate the existence of an employment relationship between the claimant and SkyWest. After initial interviews with SkyWest, but before her injury, the claimant was sent a document congratulating her on having been given an offer for the cross-utilized agent position at SkyWest. Exhibit 1; Tr. at 13. In addition, SkyWest arranged for the claimant to attend the testing in Utah, paid for her airfare, and selected and paid for her hotel in Utah. Tr. at 14-16. SkyWest directed the claimant regarding her behavior and dress while in Utah. Exhibit 11. Tr. at 16-17. The Dress/Appearance Policy given to the claimant notes, "Employees are 'on duty' while in the training facilities and the following conservative dress policy applies. . . ." Under these circumstances, we conclude that the ALJ did not commit reversible error in determining that claimant worked under a contract of hire and fell within the basic definition of "employee" for the purposes of the Act. Moorhead Machinery Boiler Co. v. Del Valle, supra. IT IS THEREFORE ORDERED that the ALJ's order issued December 1, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
CYNTHIA UNDERWOOD, GRAND JUNCTION, CO, (Claimant).
SKYWEST AIRLINES, INC., DENVER, CO, (Employer).
ACE AMERICAN INSURANCE COMPANY, Attn: KRIS OWEN, C/O: SEDGWICK CMS-DENVER, LEXINGTON, KY, (Insurer).
FRANCIS K CULKIN, Attn: FRANCIS K CULKIN, ESQ., DENVER, CO, (For Claimant).
THOMAS POLLART MILLER, LLC, Attn: JOSHUA D BROWN, ESQ., GREENWOOD VILLAGE, CO, (For Respondents).