Aspen Highlands Skiing Corp. v. Apostolou

Opinion by Judge CRISWELL. Petitioners, Aspen Highlands Skiing Corporation (the employer) and the Colorado — 1359 — Compensation Insurance Authority, challenge a final order of the Industrial Claim Appeals Panel determining that John J. Apostolou (claimant) was an employee and, therefore, entitled to workers’ compensation benefits. While we disagree with the rationale used by the Panel for its decision, we affirm its order based upon the record here. Section 8-40-202(l)(b), C.R.S. (1992 Cum. Supp.) generally defines an “employee” for purposes of the Workers’ Compensation Act as: Every person in the service of any person ... under any contract of hire, express or implied.... Section 8-40-301(4), C.R.S. (1992 Cum. Supp.), on the other hand, excludes from this general definition any: person who volunteers time or services as a ski patrol person ... for a passenger tramway operator.... (emphasis supplied) The Act does not define the term, “volunteers,” however. Claimant was admittedly employed on a part-time basis as a ski instructor by the employer, which operates a passenger tramway in conjunction with its operation of a skiing facility. As compensation for his services as an instructor, claimant received both a salary and a personal ski pass, allowing him to ski free so long as he worked for the employer. The employer utilized two groups of individuals to act as members of its ski patrol, which it classified as “professionals” and “volunteers.” The “professional” ski patrol were full-time, salaried employees, while the “volunteer” members normally received only a ski pass similar to the pass provided to claimant as a part of his compensation as a ski instructor. In January 1990, an agent of the employer made known to all of its ski instructors of the need for persons with CPR qualifications and first aid training to work as members of the volunteer ski patrol. When claimant disclosed that he possessed such qualifications, he was directed to speak with the ski patrol director. In claimant’s discussions with the ski patrol director, he eventually agreed to serve as a member of the patrol. However, because he already possessed a season’s ski pass, he negotiated with the director to provide, in return for his services on the ski patrol, daily passes for him or his designee. While the evidence was in some dispute upon the subject, the Administrative Law Judge (AU) found that the agreement was that claimant or his designee was to be provided with unlimited daily passes. The AU also found that claimant’s girlfriend actually used the passes on seven to ten occasions during the 1990 ski season. In February 1990, claimant injured his knee while performing services for the employer as a ski patrolman. Based upon the value of the daily passes for which claimant had bargained and the number of hours claimant worked as a member of the ski patrol, the AU determined that claimant’s financial return for such services was approximately $4.50 per hour. Because of his injury, however, he was unable to continue his work as a ski instructor, and in addition, he was temporarily disabled from working at his other part-time employment. The AU, relying upon the specific facts disclosed by the record, held that claimant was not a “volunteer” under § 8-40-301(4), because he had been solicited to work as a ski patrolman by the employer, he had negotiated with the employer to provide a special benefit to him, and but for such special benefit (which possessed substantial monetary value), claimant would not have agreed to perform services as a “volunteer.” Hence, the AU found that claimant fell within the Act’s general definition of “employee” and granted benefits to him based upon the compensation he received from his concurrent employment as a part-time ski instructor and other part-time employment. The Panel in its review and affirmance of the AU’s determination held that a person cannot be a “volunteer” under § 8-40-301(4) unless the person serves “with no expectation other than the enjoyment of serving,” as contrasted with “those who act as patrol members with the expectation — 1360 — of some type of remuneration.” (emphasis supplied) Under this interpretation of the statute, therefore, if a member of a ski patrol receives a ski pass and it has some value, that member would not be a “volunteer.” The employer, on the other hand, asserts that it is common practice for ski slope operators to provide ski passes to its volunteer ski patrol members and that the General Assembly adopted the statutory exclusion with knowledge of this practice. However, this record contains no evidence of any such general practice, and the portion of the legislative history referred to by the employer does not support its assertion that § 8-40-301(4) was adopted with knowledge of that practice. Further, considering the specific factual record presented here, we find it unnecessary to adopt any all-encompassing definition of the term “volunteers,” as that term is used in § 8-40-301(4). In determining whether a “contract of hire” exists under § 8-40-202(l)(b), the contract need not be express, and technical requirements for a “contract” need not be observed; an agreement by the employee to perform services for another is sufficient. Rocky Mountain Dairy Products v. Pease, 161 Colo. 216, 422 P.2d 630 (1966). Moreover, there is no requirement that the employee receive some amount of money in return for the services rendered by that employee. The compensation may take other forms. See generally IB A. Larson, Workmen’s Compensation Law § 47.43(a) (1992). Nevertheless, the services must be rendered with the expectation of some type of compensation. Thus, if the services are volunteered without any expectation of compensation in return, the fact that the alleged employer may provide some benefit on a gratuitous basis will not convert a volunteer into an employee. See Hall v. State Compensation Insurance Fund, 154 Colo. 47, 387 P.2d 899 (1963) (member of organization donating services to hospital is not an employee simply because she received free lunch at hospital). We cannot say, therefore, that, simply because a passenger tramway operator provides a ski patrol member with a free skiing pass, that fact alone, without consideration of the particular circumstances involved, removes the ski patrol member from the category of a “volunteer” under § 8-40-301(4). And, to the extent that the Panel relied upon such a premise, we reject its analysis. On the other hand, we likewise cannot say, as a matter of law, that a member of a ski patrol is a “volunteer” if, as here, the member specifically agrees to perform services only in return for the receipt of a special benefit having substantial value, which is not provided to other volunteers, and refuses to perform such services except in accordance with that special contract. In short, even though the status of “volunteer” under the statute might not be jeopardized solely by the operator’s furnishing of a ski- pass to the patrol member, the evidence here supports the AU’s determination that claimant was not a volunteer, but that he rendered his services pursuant to an express contract of hire with an expectation of compensation. Here, the employer first contacted claimant because he was an admitted employee who possessed qualifications needed by it. He was directed to speak with another supervisor, and he agreed to act as a member of the patrol only after negotiating with this supervisor to receive a special benefit. The evidence supports the ALJ’s finding that, without such consideration, claimant would have refused to render any services as a patrol member. We also reject the employer’s assertion that, because a ski pass for use by another person is not one of the benefits which constitutes “wages” under § 8-40-201(19), C.R.S. (1992 Cum.Supp.), claimant must be considered to be a volunteer, rather than an employee. The definition of employee does not require the receipt of “wages.” See § 8-40-202(l)(b). The contract of hire may call for — 1361 — compensation in another form. See IB A. Larson, supra. Rather, the term “wages,” as defined in § 8-40-201(19), is to be used only in calculating a claimant’s “average weekly wage,” as that term is used in § 8-42-102, C.R.S. (1992 Cum.Supp.), to determine the amount of benefits to which an injured employee is entitled. While the value of benefits not described in § 8-40-201(19) may not be included in determining the level of benefits, the lack of any “wages” as defined by this latter statute does not mean that there exists no “contract of hire” under § 8-40-202(l)(b). Order affirmed. SMITH, J., concurs. ROTHENBERG, J., dissents.