W.C. No. 4-309-663Industrial Claim Appeals Office.
December 30, 1997
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ), which denied and dismissed the claim because the Division of Workers’ Compensation (Division) lacks jurisdiction. We affirm.
The ALJ found that the claimant was injured in Arizona while performing duties arising out of and in the course of her employment as a long haul truck driver for respondent Florilli Corporation (Florilli). At all times pertinent, the claimant was a resident of Fruita, Colorado. Florilli maintains its headquarters and principal place of business in Iowa.
The ALJ found that, in the spring of 1996, the claimant contacted Florilli and spoke with the personnel manager, Dwayne Hopkins, concerning possible employment with Florilli. During the conversation, Hopkins determined that the claimant met Florilli’s basic hiring criteria, which included two years of experience in the trucking industry. As a result, Hopkins “invited” the claimant to Iowa for a “final interview and testing process.” A second telephone call confirmed the arrangements for the trip.
The ALJ further found that the claimant arrived in Iowa on or about June 25, 1996, and completed a formal application for employment, a physical examination and a drug screen test. The claimant was also required to undergo a test concerning her knowledge of trucking rules and regulations, as well as a road test using a tractor-trailer rig. The ALJ determined that the claimant was “hired late in the afternoon” of June 26, 1996, after the employer received the results of the drug test.
The ALJ also found that the claimant completed thirty-nine hauling assignments before she was injured. However, the ALJ found that only three of these assignments involved pick-ups or deliveries within the state of Colorado, and that the vast majority of the claimant’s travel occurred outside of Colorado. Although the claimant occasionally drove the truck to her home in Fruita, the ALJ determined that some “pick-up and deliveries were scheduled to accommodate her request to return to her home to take a few days of vacation.”
Under these circumstances, the ALJ concluded that the Division lacks jurisdiction to adjudicate the claim for the Arizona injury. Citing § 8-41-204, C.R.S. 1997, the ALJ first determined that the claimant was not “hired” in Colorado. The ALJ specifically found that the only portion of the “contract formation process” which occurred in Colorado involved the claimant’s telephone conversations with Hopkins. However, the ALJ determined that these conversations did not amount to an offer and acceptance of employment, but merely an invitation for the claimant to travel to Iowa where she would undergo the final interviews and testing. Thus, the ALJ concluded that the final acts necessary to obligate the parties did not take place until the claimant was actually hired in Iowa.
Moreover, the ALJ concluded that the claimant was not “regularly employed” in Colorado. The ALJ cited the fact that only three of the thirty-nine assignments required a Colorado pick-up or delivery, and that a majority of the claimant’s trips occurred in other states.
I.
On review, the claimant first contends that the ALJ erred in determining that she was not “hired” in Colorado for purposes of § 8-41-204. Essentially, the claimant argues that she “accepted the offer” of employment during one of the telephone conversations with Hopkins. In support of this argument, the claimant cites evidence that Florilli reimbursed her for some of the cost of her travel to Iowa, as well as the cost of the motel while she stayed in Iowa. The claimant also cites Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996), for the proposition that the physical and professional testing in Iowa does not preclude the conclusion that the contract was formed in Colorado. We are not persuaded.
It is now well established that the place where the contract is made is the place where the claimant is “hired” for purposes of § 8-41-204. In turn, 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 Denver Truck Exchange v. Perryman, 134 Colo. 586, 307 P.2d 805
(1957); Moorhead Machinery Boiler Co. v. Del Valle, supra.
Generally, the existence of a contract for hire is a question of fact for the ALJ. 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). Since the issue is factual in nature, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In applying this standard, we are obliged to defer to the ALJ’s resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The claimant’s arguments notwithstanding, the record contains substantial evidence to support the determination that claimant was hired in Iowa. Although the claimant expressly testified that she accepted the offer of employment during the telephone conversation, her testimony was largely contradicted by that of Hopkins. The ALJ placed greater weight on the testimony of Hopkins, and found that the telephone conversations were purely preliminary and did not bind either of the parties to a contract of hire. This conclusion is supported by evidence that Florilli would not have employed the claimant unless she traveled to Iowa, passed the mental and physical examinations, and passed the mandatory drug test.
We are not persuaded that the employer’s willingness to pay part of the claimant’s travel expenses necessarily evidences a firm contract for hire. To the contrary, the ALJ could have concluded that the willingness to pay expenses was part of the employer’s recruiting process, but did not prove its willingness to hire an employee without completion of the requisite testing.
Neither do we believe that Moorhead Machinery Boiler Co. v. Del Valle mandates a different result. That case concerned a union hiring hall arrangement in which 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.
Here, there is little or no evidence that any “practice” existed under which Florilli would reasonably expect that a telephone conversation with a Colorado resident would amount to a “hiring” for purposes of the Colorado workers’ compensation statute. To the contrary, the employer presented substantial evidence that it had no such expectation, and would not hire any drivers unless they were willing to travel to Iowa and undergo the various tests and examinations. Thus, Moorhead is distinguishable.
Neither do we agree with the claimant’s assertion that she accepted an offer for a “unilateral contract” by traveling to Iowa. To the contrary, even the claimant admitted that she was aware the employer would not hire her unless she passed the various tests and examinations.
Consequently, the record supports the ALJ’s conclusion that there is no Colorado jurisdiction based on a Colorado employment contract. Cf. Pfuhl v. Prime, Inc., supra. The mere fact that the evidence might have supported contrary findings and conclusions is immaterial on review.
II.
Claimant next contends that the ALJ erred in finding that she was not “regularly employed” in Colorado for purposes of § 8-41-204. In support of this contention, the claimant cites evidence that she was allowed to drive the employer’s truck to her residence when taking vacation days. The claimant also cites evidence that she performed at least three pick-up and deliveries in Colorado. We are not persuaded.
The question of whether the claimant was “regularly employed” in Colorado depends on whether the claimant engaged in “substantial” employment within the state. Determination of this issue depends, to a large degree, on the frequency and extent of the claimant’s employment contacts with the state. See RCS Lumber Co. v. Worthy, 149 Colo. 537, 369 P.2d 985 (1962). In turn, determination of these questions is a matter of fact for the ALJ. Pfuhl v. Prime, Inc., supra.
Here, the record supports the determination that the vast majority of the claimant’s driving duties occurred outside Colorado. Moreover, the record supports the ALJ’s finding that the claimant’s use of the truck near her Fruita home was merely an employer accommodation to the claimant so she could take vacation. (Tr. pp. 60-61). Thus, we cannot say the ALJ erred as a matter of law in concluding that the claimant was not “regularly employed” within the state of Colorado.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 11, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed December 30, 1997 to the following parties:
Karen Roth, P.O. Box 367, Fruita, CO 81521-0367
Florilli Corp., P.O. Box 186, West Liberty, IA 52776-0186
TIG Insurance Company, P.O. Box 17005, Denver, CO 80217
J. Keith Killian, Esq. Joanna Jensen, Esq., P.O. Box 4848, Grand Junction, CO 81502 (For the Claimant)
Stephan B. Schweissing, Esq. David Price, Esq., P.O. Box 3177, Grand Junction, CO 81502-3177 (For the Respondents)
Chris J. Scheldrup, Esq., P.O. Box 1943, Cedar Rapids, IA 52406-1943 (For the Respondents)
By: __________________________