State Compensation Ins. Fund v. Howington

• Decision Date: 18 June 1956
• Docket Number: No. 17881,17881
• Citation: 133 Colo. 583,298 P.2d 963
• Parties: STATE COMPENSATION INSURANCE FUND and Industrial Commission of Colorado, Plaintiffs in Error, v. Aubrey J. HOWINGTON and Minerals Engineering Company, a corporation, Defendants in Error.
• Court: Colorado Supreme Court

Page 963

298 P.2d 963

133 Colo. 583

STATE COMPENSATION INSURANCE FUND and Industrial Commission of Colorado, Plaintiffs in Error, v. Aubrey J. HOWINGTON and Minerals Engineering Company, a corporation, Defendants in Error.

No. 17881.

Supreme Court of Colorado, En Banc.

June 18, 1956.

Harold Clark Thompson, Louis Schiff, Alious Rockett, Denver, for State Compensation Ins. Fund.

Duke Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Peter Dye, Asst. Atty. Gen., for Industrial Commission.

Adams, Heckman, Traylor & Ela and Ivan P. Kladder, Grand Junction, for Minerals Engineering Co., a corporation.

Albin Anderson, Jr., Grand Junction, for Aubrey J. Howington.

SUTTON, Justice.

Defendants in error, Aubrey J. Howington and Minerals Engineering Company, a corporation, were respectively employee and employer in proceedings below relating to a claim for workmen's compensation and will be referred to herein as claimant and the company. Plaintiffs in error herein will be referred to as defendants or by name.

The controversy before us involves the jurisdiction of the Industrial Commission of Colorado over an accident to claimant who was originally employed in Colorado, and which occurred in Utah where he was then employed by the company.

The record discloses that claimant was employed by the company in Grand Junction, Colorado, and immediately sent to Utah to work on a mining project. On September 28, 1954, a few days after being transferred to a different Utah mine, he was accidentally injured by a dynamite blast arising out of and during the course of his employment. Following the accident he was taken to a Utah camp, and from there to a Colorado Hospital. Claimant performed no work for the company in Colorado, but did have his mail sent to Colorado in care of his employer. He was unmarried and was living in a hotel in Colorado when hired; returned to Colorado on his weekends off and had Colorado Income Tax withheld from his wages. The company carried Colorado Workmen's Compensation Insurance on its miners and other employees for its contract drilling and mining operations. It carried similar Utah insurance on workers employed by it at an oil refinery in Utah. There was no set time for claimant or other employees engaged in similar work to be out of Colorado on various jobs, and this claimant had been out of the state less than six months when injured. The company had not secured 'extraterritorial coverage' for its Utah employees at the time of this accident but did secure it a short time later, apparently because of the defendant's denial of jurisdiction and its possible effect on other employees. Claimant could have been transferred by the company from Utah to Colorado or to work in other states. The company reported his injury to the Colorado Industrial Commission but not to the Utah Industrial Commission. After this action was begun claimant filed a claim with the Utah Commission for the same accident. We are not, however, concerned with that matter.

Hearings before the Colorado Referee and Colorado Industrial Commission were adverse to claimant and the company, both of whom have taken the same side of the case. They sought review in the district court of Mesa County, Colorado, where the court reversed the finding of lack of jurisdiction and ordered the claim allowed and assessed costs against the Insurance Fund. Their motion for a new trial, being denied, defendants are here by writ of error, urging four points for reversal:

1. That 'the court erred in its order and decree of December 21, 1955 ordering, adjudging and decreeing that the findings of fact made by the referee and the Industrial Commission in this case together with the law bring the plaintiff's claim within the terms of a compensable claim under the extraterritorial provisions of the Colorado Statutes enumerated therein.'

2. That 'the court erred in finding that the findings of fact above mentioned do not support the orders and awards of the referee and the Industrial Commission.'

3. That 'the court erred in ordering and decreeing that the award of the Industrial Commission be set aside and in ordering that the claim be remanded to said Commission with the instructions to enter an award in favor of the claimant as directed therein.'

4. That 'the court erred in assessing costs against the defendants and in requiring the State Compensation Insurance Fund to pay the same.'

Claimant and the company assert the propriety of the lower court's judgment and urge that defendants are estopped from asserting any defense because they knew or should have known from the company's withholding tax returns and claim forms filed that it had employees in Utah and in other states; that other employees injured in prior accidents as well as in this same accident, in the foreign jurisdiction, had their claims recognized in Colorado.

The briefs of both parties, as well as the fine detailed orders of the referee, have provided us with clear and concise statements of fact as well as citations. Naturally they arrive at opposite conclusions. We think this case must be decided upon the construction of those provisions of our statute relating to out of state employment of persons hired in Colorado. Accordingly the first three grounds of alleged error can be stated as a single subject.

First Question To Be Determined.

Is an employee hired in Colorado by a Colorado operating employer who carried Colorado Workmen's Compensation Insurance, and which employee performs no duties in Colorado and is employed in Utah on an indefinite basis, entitled to the protection and awards of Colorado State Compensation Insurance if he is accidentally injured in Utah from a cause arising out of and during the course of his employment?

This question is answered in the affirmative. The statute in question was adopted in 1941 as an amendment to section 430, Ch. 97, Vol. 3, 1935 Colo.Stat.Anno. and now appears as C.R.S.1953, 81-16-1 et seq. This article is as follows:

'81-16-1. Exemptions--laws of other state furnish exclusive remedy.--Any employee who has been hired outside of this state, and his employer, shall be exempted from the provisions of the workmen's compensation act of Colorado while such employee is temporarily within this state doing work for his employer if such employer has furnished workmen's compensation insurance coverage under the workmen's compensation or similar laws of a state other than Colorado, so as to cover such employee's employment while in this state; provided the extraterritorial provisions of this article are recognized in such other state and provided employers and employees who are covered in this state are likewise exempted from the application of the workmen's compensation or similar laws of such other state. The benefits under the workmen's compensation act or similar laws of such other state shall be the exclusive remedy against such employer for any injury, whether resulting in death or not, received by such employee while working for such employer in this state.

'81-16-2. Certificate of other state prima facie evidence.--A certificate from the duly authorized officer of the industrial commission or similar department of another state certifying that the employer of such other state is insured therein and has provided extraterritorial coverage insuring his employees while working within this state shall be prima facie evidence that such employer carries compensation insurance.

'81-16-3. Injury outside of state--benefits in accordance with state law.--If an employee who has been hired or is regularly employed in this state receives personal injury by accident arising out of and in the course of such employment outside of this state he, or his dependents in case of his death, shall be entitled to compensation according to the law of this state. This provision shall apply only to those injuries received by the employee within six months after leaving this state, unless prior to the expiration of such six months period the employer has filed with the industrial commission of Colorado notice that he has elected to extend such coverage a greater period of time.

'81-16-4. 'State' construed.--As used in this article, the term 'state' shall be construed to include any state or territory of the United States, the District of Columbia, and any province of Canada.

'81-16-5. Article deemed to be part of workmen's compensation act.--This article shall be known and be deemed to be and become a part of the workmen's compensation act of Colorado.'

Prior to the adoption of this statute in 1941 this Court had held that the prerequisites for recovery of compensation in Colorado by a claimant injured outside of Colorado were:

1. The contract of employment must have been made in Colorado.

2. The claimant must have performed a substantial amount of his work in Colorado.

3. The claimant must have been but temporarily employed in a foreign jurisdiction.

The defendants have adopted the supplemental order of the referee dated June 9, 1955, as part of their brief and as pertinent here that order states in part:

'Under the rule, the Workmen's Compensation Act of Colorado has been, and still may be, extended to cover employees in foreign jurisdictions when an employee, or several employees, are temporarily employed outside Colorado, regardless of whether formal extra-territorial coverage has been negotiated, or whether the foreign jurisdiction has, or has not, enacted a reciprocal statute on this subject, or whether the employer is, or is not, subject to the Workmen's Compensation Act of the foreign jurisdiction.

'In 1941 the Colorado Legislature enacted the extra-territorial provisions of the Colorado Act, the same being Sections 150-153(a) of the pamphlet edition, or Sections 81-16-1 to 81-16-5 C.R.S.1953. Under these extra-territorial provisions, which provide for reciprocal recognition of coverage between states having similar provisions in...