Aspen Highlands Skiing Corp. v. Apostolou

• Citation: 866 P.2d 1384
• Decision Date: 24 January 1994
• Docket Number: No. 93SC94,93SC94
• Parties: ASPEN HIGHLANDS SKIING CORPORATION and Colorado Compensation Insurance Authority, Petitioners, v. John J. APOSTOLOU; Industrial Claim Appeals Office; and Director, Division of Labor, Respondents.
• Court: Supreme Court of Colorado

Page 1384

866 P.2d 1384

ASPEN HIGHLANDS SKIING CORPORATION and Colorado Compensation

Insurance Authority, Petitioners, v. John J. APOSTOLOU; Industrial Claim Appeals Office; and Director, Division of Labor, Respondents.

No. 93SC94.

Supreme Court of Colorado,

En Banc.

Jan. 24, 1994.

Halaby, McCrea & Cross, Margaret D. Keck, Denver, for petitioners.

Ross P. Goldsmith, Denver, Jeremy M. Bernstein, Aspen, for respondent John J. Apostolou.

Gale A. Norton, Atty. Gen., Timothy M. Tymkovich, Sol. Gen., Paul Farley, Deputy Atty. Gen., Mary Karen Maldonado, First Asst. Atty. Gen., James C. Klein, Asst. Atty. Gen., Human Resources Section, Denver, for respondents Indus. Claim Appeals Office and Director, Div. of Labor.

White and Steele, P.C., John M. Lebsack, Michael A. Perales, Denver, for amicus curiae, Colorado Ski Country USA, Inc.

Justice LOHR delivered the Opinion of the Court.

We granted certiorari to review the decision of the Colorado Court of Appeals in Aspen Highlands Skiing Corporation v. Apostolou, 854 P.2d 1357 (Colo.App.1992), which sustained an award of workers' compensation benefits to John J. Apostolou. The issue on appeal was whether under the facts of this case, Apostolou was an "employee" of Aspen Highlands Skiing Corporation (Highlands), and therefore entitled to such benefits, when he was injured while working for Highlands on the ski patrol. We affirm the judgment of the court of appeals.

I.

John J. Apostolou was employed by Highlands as a part-time ski instructor during the 1989-1990 ski season. ¹ As part of his compensation for this work, he was given a photographic identification card (photo ID) that enabled him to ski free at any time at Aspen Highlands.

In January 1990, Highlands told its ski instructors that it needed persons with CPR qualifications ² and first aid training to work on ski patrol. The ski patrol consisted of two categories of workers: professionals, who worked full-time and were paid a salary, and other workers, who worked part-time, received no monetary compensation, but were given photo IDs that enabled them to ski free at any time at Aspen Highlands.

Apostolou mentioned that he had the requisite qualifications and was referred to the ski patrol director. Because he already had a photo ID, Apostolou negotiated an agreement with the ski patrol director to receive daily ski passes for his girlfriend in exchange for his ski patrol work. The agreement entitled the girlfriend to as many daily ski passes as she was able to use during the period that Apostolou performed ski patrol duties. Each pass had a retail value of $36.00, and Apostolou would not have agreed to work on the ski patrol if the arrangement had not been made.

On February 20, 1990, Apostolou fell while on ski patrol duty, injuring his knees. A week later he underwent surgery on his right knee. As a result of his injuries, Apostolou was unable to continue working as either a ski instructor or a ski patrol person.

Apostolou filed a workers' compensation claim. Highlands and its workers' compensation insurer, Colorado Compensation Insurance Authority (CCIA), contested the claim, asserting that Apostolou was not an employee at the time of his injuries, but was a volunteer, and as such, not entitled to workers' compensation benefits. After a hearing, an administrative law judge (ALJ) concluded that Apostolou was working as an employee of Highlands at the time he was injured and ordered Highlands and CCIA to provide compensation. The Industrial Claim Appeals Panel affirmed the ALJ's order, and the Colorado Court of Appeals, with one judge dissenting, in turn affirmed the order of the Panel. See Aspen Highlands Skiing Corp. v. Apostolou, 854 P.2d 1357 (Colo.App.1992). We granted certiorari to determine whether the ALJ erred in determining that Apostolou was an employee of Highlands at the time he was injured and therefore was entitled to workers' compensation benefits.

II.

In Colorado, workers' compensation legislation "provides exclusive remedies for compensation of an employee by an employer for work-related injury." Triad Painting Co. v. Blair, 812 P.2d 638, 641 (Colo.1991). Under the Workmen's Compensation Act of Colorado (the Act), ³ an employee is entitled to receive compensation for an injury incurred while "performing service arising out of and in the course of his employment," § 8-52-102(1)(b), 3B C.R.S. (1986), and "proximately caused by an injury ... arising out of and in the course of his employment ...," § 8-52-102(1)(c). See, e.g., Triad, 812 P.2d at 641; Popovich v. Irlando, 811 P.2d 379, 381-82 (Colo.1991). An employee, as relevant here, is defined as "[e]very person in the service of any ... private corporation ... under any contract of hire, express or implied ... but not including any persons who are expressly excluded from [the Act]...." § 8-41-106(1)(b), 3B C.R.S. (1986) (now appearing at § 8-40-202(1)(b), 3B C.R.S. (1993 Supp.)). In 1989, the Colorado legislature amended the Act to exclude a class of persons from the definition of "employee" by adding the following provision: " '[E]mployee' excludes any person who volunteers his time or services as a ski patrol person, a ski instructor, or race crew member for a passenger tramway operator...." Ch. 67, sec. 2, § 8-41-106(5), 1989 Colo.Sess.Laws 409, 410 (now appearing at § 8-40-301(4), 3B C.R.S. (1993 Supp.)).

We first consider whether Apostolou was an "employee" of Highlands under the basic definition of that term. We then address Highlands' ⁴ argument that Apostolou was not an employee because he was not paid "wages" as that term is defined in the Act. Finally, we address Highlands' contention that Apostolou volunteered his services and therefore was among the persons specifically excluded from the definition of "employee" by the 1989 amendment.

A.

The initial question is whether Apostolou satisfied the basic definition of "employee" as a person "in the service of" Highlands "under any contract of hire, express or implied." See § 8-41-106(1)(b). In Denver Truck Exchange v. Perryman, 134 Colo. 586, 307 P.2d 805 (1957), we noted that "[a] contract of hire is subject to the same rules as other contracts even though workmen's compensation laws are liberally construed in our state." Id. at 593, 307 P.2d at 810. ⁵ We also stated: " 'A contract is an agreement which creates an obligation. Its essentials are competent parties, subject matter, a legal consideration, mutuality of agreement, and mutuality of obligation.' " Id. at 592, 307 P.2d at 810 (quoting 17 C.J.S. 310, § 1a). 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. See Rocky Mountain Dairy Products v. Pease, 161 Colo. 216, 220, 422 P.2d 630, 632 (1966).

In Hall v. State Compensation Ins. Fund, 154 Colo. 47, 387 P.2d 899 (1963), a hospital provided free lunches to a person working with a volunteer service unit at the hospital. In holding that the person was not working under a contract of hire, we noted: "She was not under contract--at no time did she expressly or by implication obligate herself to the hospital, nor did the hospital at any time obligate itself to her." Id. at 50, 387 P.2d at 901.

Under the facts as found by the ALJ, a contract of hire existed between Aspen and Apostolou. Apostolou negotiated with his employer and agreed to work only in exchange for the benefit of daily passes for his girlfriend. He worked under Highlands' direction, with the expectation of compensation in the form of the daily passes. The ALJ determined that "[i]n essence, [Apostolou] obligated himself to perform ski patrol services for [Highlands] and in return, [Highlands] obligated itself to provide free daily ski passes to [Apostolou] or his designee." Under those circumstances, we conclude that Apostolou worked under a contract of hire and fell within the basic definition of "employee" for the purposes of the Act.

B.

Highlands, however, urges us to construe the term "employee" as defined in section 8- 41-106(1)(b) to include the requirement that a "contract of hire," which is an essential part of the definition, must provide for the payment of "wages," and that for this purpose we should employ the definition of "wages" found in ch. 67, sec. 4, § 8-47-101(2), 1989 Colo.Sess.Laws 409, 411. ⁶ Highlands asserts that such a construction would provide a desirable measure of clarity in distinguishing between employees and persons who volunteer time and services as ski patrol persons and thus are excluded from the definition of employee under section 8-41-106(5) of the Act. See part IIC, infra. A ski pass is not included in the definition of "wages," so the adoption of Highlands' proposed statutory construction would result in the conclusion that Apostolou was not an employee of Highlands. ⁷

Highlands' proposed construction finds no support in the statutes. Section 8-47-101(2) appears in a section of the Act providing rules for determining the average weekly wage of an injured employee for the purpose of computing compensation payments. See § 8-47-101(1), 3B C.R.S. (1986). ⁸ There is no suggestion that it was intended to have any application to the determination of employee status. Moreover, the term "wages" is not used in the definition of "employee" applicable here. See § 8-41-106(1)(b), 3B C.R.S. (1986) (an "employee" is "[e]very person in the service of any ... private corporation ... under any contract of hire, express or implied"). Therefore, there is no basis to utilize the definition of "wages" in determining the meaning of the term "employee." ⁹

In deciding whether a person is an employee for purposes of workers' compensation laws, other jurisdictions have not found the form of compensation determinative of the existence of an employer-employee relationship. See 1B Arthur Larson, Workmen's Compensation Law § 47.43(a) (1993); 99 C.J.S. ...