W.C. No. 4-777-113.Industrial Claim Appeals Office.
November 3, 2009.
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FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mottram (ALJ) dated May 28, 2009, that determined that Colorado did not have jurisdiction over the claimant’s June 12, 2008 injury and therefore denied and dismissed the claimant’s claim for benefits. We affirm.
The ALJ made the following findings. The claimant suffered an admitted injury to his low back while employed with the employer on June 12, 2008 in Questa, New Mexico. The claimant contacted the employer at their offices in Cortez, Colorado regarding potential employment. After initially being advised that no employment was available, the employer contacted the claimant while he was in Cortez and advised him that work was available in Questa. The claimant was required to travel to Questa for the employment. Upon arriving at Questa, the claimant filled out an application for employment, submitted a drug screen, and was hired by the employer to perform the functions of a heavy equipment operator. In Cortez, the claimant was merely advised of the availability of work and advised where he needed to travel to so he could apply for said employment. The claimant’s contacts with the employer in Cortez were merely informative and did not create a contract of hire. A workers’ compensation claim was, at the time of the hearing, being handled pursuant to the New Mexico Workers’ Compensation Act.
The ALJ found that the application for employment, completed on June 2, 2008, the same day as the drug screen, was a necessary prerequisite for the claimant to be hired by the employer. The ALJ found that the last act necessary for the claimant to enter into a contract for hire occurred in New Mexico when the claimant completed the
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employment application. The ALJ found that no contract for hire was entered into between the parties in Colorado. The ALJ concluded that Colorado did not have jurisdiction over the claimant’s June 12, 2008 injury.
The petition to review contains only general allegations of error, derived from § 8-43-301(8) C.R.S. 2009. Moreover, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986).
Colorado jurisdiction over injuries suffered outside of the state is conferred by statute. Section 8-41-204, C.R.S. 2009 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. Id 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. The ultimate criterion of the place where the contract is deemed to have been made is the place where the last act necessary to complete it was done. Id
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. 2009; 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).
However, here the claimant has failed to provide a transcript of the hearing and, therefore, we must presume that the ALJ’s factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo. App. 1988). We have
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reviewed the ALJ’s findings of fact. The findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo. App. 1992). In our view, the ALJ applied the relevant law and we perceive no basis upon which to set aside the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 28, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
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DANNY WEGNER, CORTEZ, CO, (Claimant).
NIELSONS SKANSKA, Attn: CLARK PETERSON, CORTEZ, CO, (Employer).
ZURICH AMERICAN INSURANCE, Attn: LAURA OROZCO, KANSAS CITY, MO, (Insurer).
TIM GUILL, ESQ. ATTORNEY AT LAW, Attn: TIM GUILL, ESQ., DENVER, CO, (For Claimant).
THE KITCH LAW FIRM, Attn: MARSHA A KITCH, ESQ., EVERGREEN, CO, (For Respondents).
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