W.C. Nos. 4-724-056 4-724-057.Industrial Claim Appeals Office.
August 6, 2008.
ORDER OF REMAND
The respondents seek review of an order of Administrative Law Judge Friend (ALJ) dated March 7, 2008, that determined that the claimant had sustained a compensable injury and that ordered the respondents to pay medical benefits. Because the findings of fact are insufficient to permit appellate review, we remand for further findings of fact.
A hearing was held on the issue of whether Colorado has jurisdiction over the claimant’s work-related claims, which arose from injuries sustained in Montana. Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The claimant at the time of his hiring was a Colorado resident. He responded to an advertisement for oil field employment by going to the office of an entity called “SOS Services” which was located in Colorado, and where he completed an application and an interview. The claimant was told that the job would be performed out of state, but that he would be returned to Colorado every five weeks. SOS Services sent the claimant to the employer’s office in Colorado, where he underwent an orientation and was asked if he was interested in the position. He responded that he was and the employer provided an airline ticket for travel on July 24, 2007, to North Dakota, where the claimant underwent training. After he completed the training he began working in North Dakota and Montana. The employer also gave the claimant a written offer of employment in North Dakota, which stated that the effective date of the employment was September 24, 2007. The offer also stated that the claimant would be “based” in Williston, North Dakota, and that his “city of origin” was Arvada, Colorado. Prior to September 24, 2007, the claimant was paid for his work by SOS Services and
Page 2
after that date the employer paid him directly. The claimant was injured in Montana in work-related accidents that occurred on October 7, 2007, and October 28, 2007.
Based upon his factual findings, the ALJ concluded that the contract of hire was formed in Colorado and that consequently this state has jurisdiction over the claims. Accordingly, he ordered the respondents to pay for treatment provided by the authorized treating physicians.
The respondents appealed the ALJ’s order and argue that the ALJ erred in finding that Colorado has jurisdiction over these claims without determining where the contract for hire was completed. In connection with this argument, the respondents also argue that the ALJ misapplied the relevant law. We agree with the respondents that the ALJ did not enter sufficient findings of fact from which we can review his conclusion that the contract of hire was formed in Colorado.
Colorado jurisdiction over injuries suffered outside of the state is conferred by statute. Section 8-41-204, C.R.S. 2007 provides that Colorado has jurisdiction over out-of-state injuries if the employee was “hired or is regularly employed in this state.” Whether an employee was “hired . . . in this state” is a contract question generally governed by the same rules as other contracts. Denver Truck Exchange v. Perryman, 134 Colo. 586, 407 P.2d 805 (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. 1984). The place of contracting is generally determined by the parties’ intention, and 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. Id; Denver Truck Exchange v. Perryman, supra. 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:
[T]he determination of when and where a contract is formed requires consideration of the purpose for the determination. When that purpose is determining the application of workers’ compensation law, a technical application of the `contract of hire’ requirement is not appropriate. Hence, the general rule announced in Denver Truck Exchange has been tempered so that a contract of hire may be deemed formed, even though not every formality attending commercial contractual arrangements is observed, as long as the fundamental elements of contract formation are present.
Page 3
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 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”).
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). Similarly, the nature of the last act necessary to complete the contract and its location are generally factual questions for the ALJ’s resolution. Because these questions are factual in nature, we are bound by the ALJ’s determinations in this regard if they are supported by substantial evidence in the record. 38-43-304(8), C.R.S. 2007; 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).
Here, we agree with the respondents that the ALJ did not expressly enter findings concerning the last act necessary to complete the contract, or where that last act occurred. It is true that the ALJ mentioned in his findings a number of the factors relevant to formation of the contract of hire, such as the claimant’s knowledge of the terms of the employment, his agreement to report to the employer’s facility in North Dakota, and his departure for that destination. See Findings of Fact, Conclusions of Law, and Order at 3, ¶¶ 2, 3. However, we are unable to infer from the ALJ’s findings what he believed the last act necessary to finalize the contract of hire was, or where that occurred. In this regard, we note that in Rocky Mountain Communications Specialists v. Industrial Claim Appeals Office, No. 05CA0734 (Colo.App. February 23, 2006) (not selected for publication) the Colorado Court of Appeals reversed our order in which we determined
Page 4
that the ALJ implicitly found that the last act necessary to complete the contract occurred in Colorado. The court in Rocky Mountain Communications Specialists disagreed that the ALJ’s findings permitted the inference that the ALJ’s resolution of the question of the last act necessary to form the contract was implicit. Here, the findings are insufficient to permit appellate review of the legal issue of the formation of the contract for hire, and a remand is necessary for the entry of further findings.
On remand the ALJ should make specific findings identifying the last act necessary to finalize the contract for hire and whether, given the nature and location of that last act, Colorado has jurisdiction over this claim. In this regard, we note that the evidence was conflicting and, of course, we have no authority to make factual findings regarding this issue. Nothing in the foregoing should be construed as dictating that any particular result should be reached on remand.
IT IS THEREFORE ORDERED that the ALJ’s order dated March 7, 2008, is set aside and the matter is remanded for further findings and entry of another order consistent with the foregoing.
INDUSTRIAL CLAIM APPEALS PANEL
_____ Curt Kriksciun
_____ Thomas Schrant
Page 5
CHRIS CLENDENING, CO, (Claimant)
SCHLUMBERGER OIL, Attn: NELDA THADANI, RISK MGMT ADMIN, C/O: SCHLUNBERGER TECHNOLOGY CORP, TX, (Employer)
TRAVELERS INDEMNITY COMPANY, Attn: RENESSA JENSEN, CO, (Insurer)
MARK A SIMON, Attn: MARK A SIMON, ESQ., C/O: ATTORNEY AT LAW, CO, (For Claimant).
RAY LEGO ASSOCIATES, Attn: KEITH E MOTTRAM, ESQ., CO, (For Respondents).
SCHLUMBERGER TECHNOLOGY CORP, Attn: MONIQUE MARTINEZ, TX, (Other Party)
PHILIP McCANN, Attn: MARSH, LA, (Other Party 2)
Page 1