W.C. No. 4-678-634.Industrial Claim Appeals Office.
March 29, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated October 3, 2006 that denied and dismissed the claimant’s claim for compensation based upon lack of jurisdiction in Colorado. We affirm.
A hearing was held on the issue of whether the claimant was an “employee” within the meaning of the Workers’ Compensation Act (the Act). Following the hearing the ALJ entered findings of fact that for the purposes of this order may be summarized as follows. The employer owns a farm business in Utah and leases a parcel of land in Colorado adjacent to the farm in Utah. On June 20, 2005 the employer and the claimant entered into a contract of employment in Utah. One of the terms of that contract provided that the employer would furnish a trailer in Utah in which the claimant could reside. The claimant and his wife lived in the trailer for eight months. The claimant’s regular job duties included bagging seed and cleaning beans at the elevator shop, which was located in Utah. The ALJ credited the employer’s testimony that the employer never discussed with the claimant any job duties carried out on the land leased in Colorado, and also credited the employer’s testimony that the claimant never worked on that Colorado land. However, on three or four occasions during the eight months of his employment the claimant transported waste material in the employer’s feed truck to the farm of the employer’s cousin, which was located several miles from the state line within the borders of Colorado. Each such trip involved approximately twenty minutes of travel and work in Colorado, which included driving to the farm and dumping the waste material. On February 8, 2005 the claimant made a trip to the Colorado farm to deposit a load of waste seed. Although he had been instructed that his wife was not
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permitted to accompany him, she did so on this particular trip. She was assisting him in dumping the waste seed when a mechanism on the truck malfunctioned and the claimant was injured.
The ALJ also found that the claimant did not perform “substantial” work in Colorado. He found that, in contrast to his regular work, the claimant’s duties operating the feed truck were “irregular and sporadic,” and that he only did such work for three hours over the course of eight months of full time work. Accordingly, the ALJ concluded that Colorado did not have jurisdiction over this injury and he denied and dismissed the claim.
The claimant appealed the ALJ’s order and argues that because the claimant’s job duties in Colorado were a part of his regular job he necessarily performed “substantial” work in this state. However, we are unpersuaded that the ALJ erred in concluding that the claimant did not perform substantial work in Colorado.
The claimant concedes that the legal standard for Colorado subject matter jurisdiction over a workers’ compensation claim was established in United States Fidelity Guaranty Co. v. Industrial Commission, 99 Colo. 280, 61 P.2d 1033 (1936). In that case the claimant was injured while employed in drilling an oil well at Craig, Colorado. However, the claimant’s contract of hire was entered into in Texas, and contemplated that he would perform his work largely in that state. He had worked outside of Colorado for more than ten years and his work in this state was confined to drilling the well in Craig. In setting forth the legal standard, the supreme court stated that “[i]t thus appears that to justify recovery under our law the one essential element is that a substantial portion of the work must be done in this state, but that with this must be combined either an accident in Colorado or a contract in Colorado.” Apparently referring to the contract regarding the oil well, the court noted that the claimant was working under a contract a substantial portion of which was to be performed in Colorado and thus this state had jurisdiction. See also Monolith Portland Cement v. Burak, 772 P.2d 688, 689 (Colo.App. 1989) (“The jurisdictional prerequisites to recovering benefits under the Act are that a substantial portion of the employee’s work must be performed in Colorado, combined with either an injury in Colorado or an employment contract entered into in Colorado.”); Loffland Brothers Company v. Industrial Commission, 714 P.2d 509, 510 (Colo.App. 1985) (“To qualify as an employee, a worker injured in this state must first meet the essential requirement that a substantial portion of his work be performed in Colorado.”).
Generally, the question whether the claimant performed “substantial employment” in Colorado is one of fact for resolution by the ALJ Monolith Portland Cement v. Burak, supra. Therefore, we must uphold the ALJ’s dispositive findings of fact if supported by
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substantial evidence. Section 8-43-301(8), C.R.S. 2006. 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. Thus, the scope of our review is “exceedingly narrow.”Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 2003). This narrow standard of review also requires that we defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117 (Colo.App. 2003).
Here, the ALJ’s dispositive factual findings were that on only three or four occasions during the eight months of his employment the claimant transported seed waste to a farm that was located several miles from the state line within the borders of Colorado. The ALJ further found that each such trip involved approximately twenty minutes of actual work in Colorado, which included traveling to the farm and dumping the waste material, and that the total time the claimant spent working in Colorado during the eight months of his employment was approximately eighty minutes. These dispositive findings are supported by the testimony of the employer and, as noted, we may not disturb them. Tr. at 46-47.
We are unpersuaded that, based upon his factual findings, the ALJ erred in concluding that the claimant was not engaged in substantial employment in Colorado. The ALJ considered the relevant factors, noting that the claimant’s “routine” work was localized in Utah and that his several brief trips to Colorado over the course of eight months were both “irregular and sporadic.” Findings of Fact, Conclusions of Law, and Order at 3, ¶ 11 (hereinafter Order). The ALJ analyzed the portion of the claimant’s work in Colorado in comparison to his overall work duties in Utah and concluded that the “vast majority” of the claimant’s time was devoted to work in Utah, and that the claimant’s work in Colorado was both occasional and brief. Order at 5. However, the ALJ was also clearly mindful of the fact that the question of “substantial employment” was not merely one subject to an arithmetical formula, but requires consideration of the “regularity” of the activity in Colorado. The ALJ cited and discussed the applicable case law and legal standard, and appropriately weighed the various factors, and we do not disagree with his conclusion that the claimant’s work in Colorado did not constitute substantial employment.
We also disagree with the claimant’s principal argument that because the activity the claimant was performing at the time of his injury was part of his regular job it necessarily constituted “substantial” employment in Colorado. Although the “routineness and
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regularity” of the claimant’s work in Colorado are factors that may be considered in the ALJ’s weighing of the evidence, see RCS Lumber Co. v. Worthy, 149 Colo. 537, 369 P.2d 985 (1962), we disagree that a finding that the activity is a part of the claimant’s “regular job” compels the conclusion that it constitutes “substantial employment.” See also Richardson v. Big Mac Trucking Co., W.C. No. 4-258-486 (May 12, 1997) (consideration of the claimant’s usual and regular employment is appropriate); Pfuhl v. Prime, Inc., W.C. No. 4-215-425 (February 16, 1995) (same); Hatt v. Schneider National Carriers, Inc., W.C. No. 4-121-034 (October 2, 1992) (same). In our view, however, a job duty may be required by the employment, but may be performed so infrequently, sporadically, or occasionally that it fails to constitute “substantial employment” so as to confer jurisdiction in Colorado. Indeed, few job duties can reasonably be said not to be a part of the employee’s “regular job.” Hence, accepting the claimant’s argument would compel a finding of Colorado jurisdiction in every case except those in which the activity leading to the injury was gratuitous on the part of the employee, or a deviation from the claimant’s employment, or not otherwise required by the duties of the employment. The claimant’s proposed legal standard would effectively eliminate from the analysis the “substantiality” factor and reduce the inquiry to whether the claimant was performing any “job duty.” We do not read the case law to require or even suggest that conclusion. Therefore, we are unpersuaded to disturb the ALJ’s conclusion here that working a total of eighty minutes in Colorado spread over eight months of employment was not substantial employment in this state.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 27, 2006, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_____________________________ John D. Baird
_____________________________ Curt Kriksciun
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Robert C. Dawes, Esq., Durango, CO, (For Claimant).
Traylor, Tompkins, Black Gaty, P.C., Christopher B. Gaty, Esq., Grand Junction, CO, (For Respondents).
Ricardo Paredes, Dolores, CO, Matt Sarah Carhart, Dove Creek, CO, Farm Bureau Insurance, Bob Harmon, Provo, UT.
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