Opinion
No. 77-954
Decided June 22, 1978. Rehearing denied July 20, 1978. Certiorari granted Hefley September 25, 1978.
Injured farm laborer sought review of order of Industrial Commission denying him workmen's compensation benefits.
Order Set Aside
1. WORKERS' COMPENSATION — Farmer — Contracted Out — Farm Work — Uninsured Contractor — Became — Statutory — Employer. Where farm labor contractor who was not insured under the Workers' Compensation Act entered contract with farmer to cut ensilage on the farmer's farm, the farmer thereby became a "statutory employer" under the contracting out provisions of the Act, and that was true even though he otherwise would have been within an exemption established in the Act for employers of farm and ranch labor.
Review of Order of Industrial Commission of the State of Colorado
Johnson, McLachlan DiCola, Anthony J. DiCola, Larry Stutler, for petitioner.
J. D. MacFarlane, Attorney General, David W. Robbins, Deputy Attorney General, Edward G. Donovan, Special Assistant Attorney General, Timothy R. Arnold, Special Assistant Attorney General, for respondent Industrial Commission of the State of Colorado.
Schmidt Schmidt, Howard M. Schmidt, for respondent A. B. Hefley.
Petitioner, Apolonio Morales, seeks review of a final order of the Industrial Commission denying his claim for workmen's compensation benefits against the respondent, A.B. Hefley. The commission determined that pursuant to § 8-41-105(2), C.R.S. 1973, Hefley, as an employer of farm and ranch labor, was exempt from the provisions of the Colorado Workers' Compensation Act. We set aside the order.
The relevant facts are undisputed. Morales was hired in New Mexico by one Sanchez Ochoa as part of a farm labor crew to work on farms in New Mexico, Oklahoma, and Colorado. Ochoa entered into a contract with Hefley to cut corn ensilage on Hefley's farm located near Walsh, Colorado. On September 23, 1975, Morales was working for Ochoa on Hefley's farm when he caught his arm in a corn chopping machine and sustained serious injuries. Ochoa did not carry workmen's compensation insurance.
Section 8-41-105(2), C.R.S. 1973 (1976 Cum. Supp.), provides as follows:
"Articles 40 to 54 of this title are not intended to apply to employers of farm and ranch labor if the amounts expended for wages by an employer of said farm and ranch labor does not exceed the sum of twenty-four thousand dollars for the calendar year 1975 and the sum of ten thousand dollars for the calendar year 1976; thereafter, effective 12:01 a.m., January 1, 1977, this subsection (2) shall not apply, and employers of farm and ranch labor shall be included in the definition contained in paragraph (b) of subsection (1) of this section."
Morales contends that even though Hefley might be exempt under the above section, nevertheless, he is liable under § 8-48-101, C.R.S. 1973, which provides, in part:
"Any person, company, or corporation operating or engaged in or conducting any business by leasing or contracting out any part or all of the work thereof to any lessee, sublessee, contractor, or subcontractor, irrespective of the number of employees engaged in such work, shall be construed to be an employer as defined in articles 40 to 54 of this title and shall be liable as provided in said articles to pay compensation for injury or death resulting therefrom to said lessees, sublessees, contractors, and subcontractors and their employees."
We agree.
[1] Here Hefley contracted out the work to a contractor who was not insured. This section of the statute "is intended to cover every business conducted by one through the activities of another under any kind of a contract." Faith Realty Development Co. v. Industrial Commission, 170 Colo. 215, 460 P.2d 228 (1969). It includes those who are otherwise exempt, for the section's "force lies in the fact that it says that one 'shall be construed to be . . . an employer' who would not otherwise be such." Zimmerman v. Industrial Commission, 109 Colo. 533, 127 P.2d 878 (1942).
This section makes one who is not otherwise an employer a "statutory employer," and subject to the act. Snyder v. Industrial Commission, 138 Colo. 523, 335 P.2d 543 (1959). Therefore Hefley is an employer here and subject to the act.
The order is set aside and the cause remanded for further proceedings not inconsistent with this opinion.
JUDGE RULAND and JUDGE VAN CISE concur.