Aspen Highlands Skiing Corp. v. Apostolou - 866 P.2d 1384 (Colo. 1994)

Rule:

Workers' compensation legislation provides exclusive remedies for compensation of an employee by an employer for work-related injury. Under the Workmen's Compensation Act of Colorado (act), an employee is entitled to receive compensation for an injury incurred while performing service arising out of and in the course of his employment, Colo. Rev. Stat. § 8-52-102(1)(b), 3B (1986), and proximately caused by an injury arising out of and in the course of his employment. Colo. Rev. Stat. § 8-52-102(1)(c). An employee is defined as every 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. Colo. Rev. Stat. § 8-41-106 (1)(b), 3B (1986), Colo. Rev. Stat. § 8-40-202(1)(b), 3B (1993 Supp.). "Employee" 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. Colo. Rev. Stat. § 8-40-301(4), 3B (1993 Supp.).

Facts:

John J. Apostolou was employed by Highlands as a part-time ski instructor during the 1989-1990 ski season. 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 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. 

Issue:

Did the ALJ err in determining that Apostolou was an employee of Highlands at the time he was injured and therefore was entitled to workers' compensation benefits?

Answer:

No

Conclusion:

The court affirmed concluding that Apostolou was an "employee" of Highlands and was entitled to such benefits, when he was injured while working for Highlands on the ski patrol. The court found that Apostolou obligated himself to perform ski patrol services for Highlands and in return, Highlands obligated itself to provide free daily ski passes to the employee or his designee. From this, the court concluded that the employee worked under a contract of hire and fell within the basic definition of "employee" for the purposes of the Workmen's Compensation Act (act).