W.C. No. 4-658-458.Industrial Claim Appeals Office.
April 26, 2006.
FINAL ORDER
The claimant seeks review of an order dated November 16, 2005 of Administrative Law Judge Martinez (ALJ) that dismissed the claim for lack of jurisdiction in Colorado, and denied the claimant’s request for temporary total disability benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. On or about May 22 or May 24, 2005, the claimant injured his knee while working for the employer in Alaska. The employer does business at construction sites all over the world. The employer is a Utah corporation headquartered in Utah and it does not have a Colorado office. The claimant is a welder by trade and travels from job to job around the country but at the relevant times had his home in Colorado. The claimant had previously worked for the employer having responded to an ad placed by the employer in a trade magazine. The employer processes paperwork in Utah including applications for employment, employment verifications, and payroll. The employer hires employees from all over the country to work on a job-by-job basis. An applicant is not hired until and unless they pass a welding test and information in the employment application is verified. The last act necessary to hire an individual occurs in Salt Lake City, Utah upon receipt, verification, and processing of information in the application for employment. When a job ends, the employee is terminated. Each job is a separate and distinct contract and there is no guarantee of rehiring, automatic recall, or additional employment. Many employees file for unemployment benefits. If another job becomes available, the individual must reapply and, if appropriate, take and pass another welding test before rehire maybe considered. There is no recall or rehire based on seniority.
The claimant had quit his job with the employer in 2004. In 2005 the claimant, seeking employment, contacted the employer at their office in Utah. The employer identified possible employment in Wyoming if the claimant could pass the welding test and properly fill out employment papers. The claimant traveled to Wyoming and there successfully passed the welding test and filled out employment records. He was hired to work in Wyoming. While the claimant was working in Wyoming, he learned of another possible job opportunity the employer had in Alaska. The claimant called the employer in Utah and was informed they needed to confirm his qualifications and credentials. Subsequently the employer offered him the Alaska job and the claimant traveled back from Wyoming to his home in Colorado and then traveled to Alaska, where he eventually injured his knee in the course and scope of his employment.
The ALJ determined that the contract of employment was not created in Colorado, but was entered into either in Utah or Wyoming. The ALJ further determined that the employer did not regularly employ the claimant to work in Colorado and on review the claimant does not assert that he was “regularly employed” in Colorado for purposes of § 8-41-204. Thus, the issue presented is whether he may be deemed to have been hired in Colorado.
The claimant, citing Moorehead Machinery Boiler v. Del Valle, 934 P.2d 861 (Colo.App. 1996), contends the record fails to support the ALJ’s finding that he was not hired in Colorado because the paper work he filled out in Wyoming and the verification of the information in Utah were mere formalities which should not subordinate the reality of the way the employer hires its workers. We disagree.
Section 8-41-204 C.R.S. 2005, provides that Colorado has jurisdiction over injuries suffered outside the State of Colorado, if the injured employee was “hired or is regularly employed in this state.” See Moorehead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996). A contract of hire is subject to the same rules as other contracts. Denver Truck Exchange v. Perryman, 134 Colo. 586, 307 P.2d 805 (Colo.App. 1957). 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. 1994). The place of contracting is generally determined by the parties’ intention, and it is usually the place where the offer is accepted, or the last act necessary to the meeting of the minds or to complete the contract is performed. Moorehead Machinery Boiler Co. v. Del Valle, supra; Denver Truck Exchange v. Perryman, supra.
In Moorehead Machinery Boiler Co. v. Del Valle, supra, the court concluded the claimant was hired in Colorado where an out of state employer hired Colorado boiler makers through the union’s Denver office. In those circumstances, the court determined that the “common expectation” and practice was that, once the employer contacted the union hall, a worker with the “required health and skills would arrive for work at the specified time and location.” Consequently, the fact that the employer reserved the right to check the boiler makers’ credentials at the out of state job site did not vitiate the conclusion that the contract was formed in Colorado. The employer in Moorehead regularly used the union in Denver to offer employment to Colorado workers and the employer’s field superintendent testified that when the claimant reported to the job he could have rejected him but the last time he had rejected a union member was two years before. The court found that when the union called the worker expected and the regular practice was to travel to the job sit and begin work at the already agreed wages and hours and likewise the employer did not know which particular worker would arrive but the expectation was and the regular practice was that a worker with the required health and skills would arrive for work at the specified time and location. Under these circumstances the court found that there had been no err in the determination that Colorado had jurisdiction, even though not every formality attending commercial contractual arrangement was observed because the fundamental elements of contract formation were present in Colorado.
Because the existence of a contract for hire is generally a question of fact for the ALJ, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005. Tuttle v. ANR Freight System, Inc., 797 P.2d 825 (Colo.App. 1990); Pfuhl v. Prime, Inc.,
W.C. No. 4-215-435 (February 16, 1995). In applying this standard, we are obliged to view the evidence in the light most favorable to the prevailing party and defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293
(1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
Applying these principles here, we note that while working in Wyoming the claimant learned of another job opportunity the employer had in Alaska. The claimant contacted the employer in their Utah office and after confirming the claimant’s qualifications the employer contacted the claimant in Wyoming and offered the claimant the Alaska job. The claimant returned to his home in Colorado and then traveled to Alaska where he was injured. On the issue of contract formation there is little if any relevant contact with Colorado. We do not think that in this case, as in Moorehead, the fundamental elements of contract formation were present in Colorado. In the present case a Utah employer that hires employees from all over the country was contacted by a person who was working in Wyoming, seeking a job in Alaska. Under these circumstances we perceive no basis on which to interfere with the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 16, 2005, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
Lewis Carr, Whitewater, CO, Rocky Mountain Fabrication Inc., Salt Lake City, UT, The Herrick Corporation, Pleasanton, CA, Arch Insurance Company, c/o Jennifer Green, Gallagher Bassett Services, Englewood, CO, Arthur S. O’Farrell, Esq., Grand Junction, CO, (For Claimant).
David J. Dworkin, Esq. and Justen L. Miller, Esq., Denver, CO, (For Respondents).