W.C. No. 4-196-156Industrial Claim Appeals Office.
December 1, 1995
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Henk (ALJ), insofar as the ALJ determined that Colorado has jurisdiction over the claim, and that the claimant sustained compensable “mental impairment.” The claimant seeks review of the ALJ’s order insofar as it denied medical benefits prior to January 11, 1994. We affirm.
I.
The initial issue is whether the ALJ correctly determined that Colorado has jurisdiction over the claim for benefits under the provisions of § 8-41-204, C.R.S. (1995 Cum. Supp.). The ALJ found that the claimant was a member of the boilermaker’s union. He was regularly hired by contractors who contacted him through the union hiring hall in Denver, Colorado. In May 1993, the respondent-employer (Moorhead) contacted the claimant’s union seeking employees for a job in Wheatland, Wyoming. The claimant was called by the union and instructed to report to the job site.
The claimant reported to Wheatland on May 11, 1993, where he was required to fill out a “Personal Safety Questionnaire.” The questionnaire concerned the claimant’s medical history, and Moorhead’s field superintendent testified that the claimant could have been “refused employment” if he was not physically qualified. Moorhead could also have denied the claimant employment if it learned that the claimant lacked the requisite professional skills. However, Moorhead determined that the claimant was physically and professionally qualified, and he commenced work.
The ALJ found that the evidence supports a claim for “mental impairment” resulting from verbal harassment by a co-worker on June 11, 1993. In support, the ALJ cited medical evidence that the harassment produced “profound depression” which disabled the claimant.
Under these circumstances, the ALJ concluded that the claimant “entered into an employment contract in Colorado when he was contacted by the union hiring hall.” In support of this determination, the ALJ noted that the Personal Safety Questionnaire states that claimant accepted employment “through his union” by “appearing on the job site.” The ALJ recognized that Moorhead placed the claimant’s physical qualification as a condition of the claimant’s employment, but classified this condition as a “contingency.”
On review, the respondents assert that the ALJ erred as a matter of law in determining that the claimant entered into a contract of employment in Colorado. In support of this argument, the respondents assert that a contract creates an “obligation,” and neither the claimant nor Moorhead was under any “obligation” until the claimant appeared for work in Wyoming. Further, the respondents assert that the place of contracting is the place where the last act necessary to a meeting of the minds occurs, and that act was not completed until the claimant appeared in Wyoming and satisfactorily completed the Personal Safety Questionnaire. We disagree with the respondents.
Section 8-41-204 provides that Colorado has jurisdiction over a claim if the claimant has been hired in this state and sustains an injury within “six months after leaving this state.” A contract of hire requires competent parties, subject matter, legal consideration, mutuality of agreement and mutuality of obligation. However, a contract of hire may be formed “even though not every formality attending commercial contractual arrangements is observed as long as the fundamental elements of contract formation are present.” Aspen Highlands Skiing Corp. v. Apostolou, 866 P.2d 1384 (Colo. 1994).
Further, the place of contracting is generally determined by the parties’ intention. Often, the place of contracting is the place where the “offer is accepted, or where the last act necessary to a meeting of the minds or to complete the contract is performed.” Denver Truck Exchange v. Perryman, 134 Colo. 586, 307 P.2d 805(1957). Moreover, if the offer is for a unilateral contact to be accepted by performance, the offer is accepted when the offeree renders a “substantial part” of the requested performance. Sigrist v. Century 21 Corp., 519 P.2d 362 (Colo.App. 1974) (not selected for publication).
Because the questions of when and where a contract is formed are factual in nature, we must uphold the ALJ’s determination of the issue if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Denver Truck Exchange v. Perryman, supra. This standard requires that we defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations and the plausible inferences which she drew from the evidence. Monfort, Inc. v. Rangel, 867 P.2d 122
(Colo.App. 1993).
Here, we believe that the record supports the ALJ’s determination that the claimant accepted the contract for employment in Colorado. As the ALJ found, the union hall was, in effect, the claimant’s hiring agent. The employer recognized this fact by contacting the claimant through the union hall in Colorado. Consequently, the essential terms of the hiring arrangement were communicated to the claimant in Colorado, and the ALJ could infer that the “meeting of the minds” occurred in Colorado.
Moreover, the evidence suggests that the claimant could “accept” the contract for employment by commencing the journey to Wyoming and reporting to the job site. Consequently, the arrangement may be viewed as an offer for a unilateral contract which was accepted when the claimant rendered substantial performance by leaving his home in Pueblo. This inference is supported by the Personal Safety Questionnaire which states that acceptance is manifested by “appearing on the job site.” Thus, even Moorhead recognized that acceptance could occur before completion of the questionnaire and its determination of the claimant’s physical capacities.
Neither do we agree with the respondents that the employer’s right to reject the claimant based on his medical history or professional qualifications mandates a different conclusion. These reservations may be viewed as conditions under which the employer was entitled to terminate the contract rather than preconditions to its formation.
It is true that contrary findings and conclusions were possible. However, on this record we decline to substitute our judgment for that of the ALJ concerning where the contract for employment was formed.
II.
The respondents next contend that the ALJ erred in determining that the claimant’s claim for mental impairment “arose out of” his employment See § 8-41-301(1)(b), C.R.S. (1995 Cum. Supp.); § 8-41-301(2)(b), C.R.S. (1995 Cum. Supp.). The respondents argue that because the dispute between the claimant and his co-worker which gave rise to the verbal harassment did not involve work-related issues the claim is not compensable. We disagree.
The respondents’ argument notwithstanding, a claim for compensation resulting from physical or emotional harassment of a claimant by a co-worker may be compensable even if the “dispute” does not center on work-related issues. The following language from Rendon v. United Airlines, 881 P.2d 482 (Colo.App. 1994) is pertinent:
“An assault is compensable if it grew out of an argument over the performance of work, possession of work tools or equipment, delivery of a paycheck, quitting or being terminated, or mediating between co-employees. However, injuries have inherent connection with the employment and are compensable even if the subject of the dispute is unrelated to the work and if the work merely brought the employees together and created the relations and conditions resulting in the dispute. [citation omitted].”
The Rendon court explained that where the employment brings the parties together it is “the employment, and only because of the employment, that the claimant is subjected to his tormentor as an established fixture of the employment environment.” See also, In re Questions Submitted by U.S. Court of Appeals, 759 P.2d 17, fn. 8 (Colo. 1988).
Here, the claimant’s testimony indicates that the verbal harassment by the co-employee occurred at work and was not related to any private dispute between the parties. In fact, the claimant testified that the co-employee had harassed him at other jobs. Under these circumstances, the ALJ could plausibly find that it was the circumstances of employment which subjected the claimant to the co-employee’s harassment rather than some personal dispute arising off the job. Thus, the record contains sufficient evidence to support the ALJ’s determination of that the mental impairment “arose out of” the claimant’s employment, and therefore, we must uphold the order. Section 8-43-301(8).
III.
For his part, the claimant seeks review of that portion of the order which denied medical benefits prior to January 11, 1994. In this regard, the ALJ determined that the respondents were unaware that the claimant was asserting a claim for mental impairment until January 11, when the respondents were notified of the claim for benefits. Consequently, the ALJ determined that the respondents were not afforded an opportunity to select a physician prior to January 11, and any prior medical treatment was unauthorized.
The claimant argues that, due to his emotional state, it is “highly questionable” whether he could have understood his right to compensation and medical benefits prior to January 11. Further, the claimant argues that he contacted his “business agent” at the union hiring hall, but was not advised of his right to seek authorization for medical treatment. We find no error.
Pursuant to § 8-43-404(5)(a), C.R.S. (1995 Cum. Supp.) the employer and insurer have the right, in the first instance, to select the physician who will provide treatment for the industrial injury. However, respondents cannot exercise the right until they are given notice of an injury and need for treatment. See Rogers v. Industrial Claim Appeals Office, 746 P.2d 565
(Colo.App. 1987).
Here, the record supports the ALJ’s determination that the employer and insurer did not receive notice of an injury until January 11, 1994. Therefore, any treatment which the claimant received prior to that date is not compensable because it was not authorized by the respondents. Pickett v. Colorado State Hospital, 32 Colo. App. 282, 513 P.2d 228 (1973).
Moreover, the record does not support the claimant’s factual assertion that he was unable to correlate his symptoms with the harassment at work. As the ALJ noted, Dr. Martin’s medical records from November 1993 indicate that the claimant was associating his psychological symptoms with “the incident which occurred at the job site in Wheatland, Wyoming.”
Finally, the fact that the claimant reported his problems to the union hiring hall is of no significance. As the claimant himself recognizes, the union was acting as his agent, not the agent of Moorhead.
IT IS THEREFORE ORDERED that the ALJ’s order, dated December 13, 1994, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed December 1, 1995 to the following parties:
Daniel Del Valle, 520 Edna St., Pueblo, CO 81005
Moorhead Machinery Boiler Company, Attn: Mike Toyli, 3477 University Ave. N.E., Minneapolis, MN 55418
Twin City Fire Insurance, Attn: Laurie Iverson, 10375 E. Harvard Ave., #401, Denver, CO 80231
James A. May, Esq., 1401 Court St., Pueblo, CO 81003
(For Claimant)
Ted A. Krumreich, Esq., 1225 17th St., #2800, Denver, CO 80202
(For Respondents)
By: __________________________