Aspen Highlands Skiing Corp. v. Apostolou

Judge ROTHENBERG

dissenting.

The question here is whether this claimant’s act of negotiating to obtain free ski passes for his girlfriend in exchange for his services doing ski patrol work created an employment relationship entitling him to compensation for his injuries. Because I conclude that, despite such negotiation, claimant was a “volunteer” and not an “employee” under the Workers’ Compensation Act, I respectfully dissent.

An “employee” means every person “under any contract of hire, express or im-plied_” Section 8-40-202(l)(b), C.R.S. (1992 Cum.Supp.). Section 8-40-301(4), C.R.S. (1992 Cum.Supp.) provides that the term “employee” excludes any person who volunteers time or services as a ski patrol person.

Although the term, “wages,” does not appear in the same sections in which employee is defined, nevertheless, when the Workers’ Compensation Act is read as a whole, it can be seen that wages are an integral part of the Act and the employment relationship. For example, an “employee” is one who is under a “contract of hire,” § 8-40-202(l)(b), and wages are the compensation under that “contract of hire.” Section 8-40-201(19), C.R.S. (1992 Cum.Supp.).

As defined in the Act, “wages” is “the money rate at which services rendered are recompensed under the contract of hire,” and includes certain fringe benefits such as room and board, insurance, and tips. Section 8-40-201(19), C.R.S. (1992 Cum.Supp.). Importantly, the statute defining wages specifically excludes any fringe benefit not enumerated.

The term “volunteer” is not defined in the Workers’ Compensation Act. However, the common definition of volunteer is “a person who gives his [or her] services without any express or implied promise of remuneration.” Black’s Law Dictionary 1413 (5th ed. 1979). “Wages” falls within the ordinary definition of “remuneration.” See Black’s Law Dictionary 1165 (5th ed. 1979) (remuneration is “reward; recompense; salary; compensation”).

Given these definitions and the limitations contained within them, I submit that an appropriate and uniform test for differentiating between volunteers and employees is the receipt of wages, as defined by § 8-40-201(19), and I would adopt such a test. See Camphill Village, U.S.A. v. Workmen’s Compensation Board, 23 N.Y.2d 202, 243 N.E.2d 739, 742, 296 N.Y.S.2d 129, 132 (1968) (persons who lived in and supervised family-type establishments for handicapped persons, and who received no compensation except full subsistence for their households, were not employees for purposes of workers’ compensation, but were volunteers; receipt of wages is the distinguishing factor). Cf. IB Larson, Workmen’s Compensation Law § 47.43(a) (1992) (gratuities and discounts, unless understood by the parties to constitute the equivalent of wages, are not considered remuneration under a contract of hire). See also Mesa County Valley School District No. 51 v. Goletz, 821 P.2d 785 (Colo.1991) (volunteer assistant pitching coach not an “appointed employee” under Workers’ Compensation Act); Hall v. State Compensation Insurance Fund, 154 Colo. 47, 387 P.2d 899, 901-902 (1963) (claimant who volunteered services at hospital but received a meal free each day she worked was not “employee” of hospital *1362within Workers’ Compensation Act; liberal construction of the Workers’ Compensation Act cannot be expanded beyond the plain, clear and explicit language of the Act).

Applying such a test to the circumstances here, I conclude that this claimant is not eligible for benefits because he did not receive “wages.”

The record reflects that in Colorado volunteer ski patrol members commonly receive free passes for themselves. A free pass is an unenumerated fringe benefit and, as such, is excluded from the definition of wages. See § 8-40-201(19), C.R.S.

Here, because claimant already had his own free ski pass because of his part-time employment as a ski instructor, he negotiated to receive the free pass for his girlfriend instead of for himself. Nevertheless, claimant received the equivalent of that which was received by all other volunteer ski patrol members: one free ski pass. Since he received an unenumerated fringe benefit excluded from the definition of “wages,” I would conclude that he remained a volunteer and was not transformed into an employee under the Workers’ Compensation Act.

In summary, I would hold that a member of the ski patrol who receives an unenu-merated fringe benefit such as a gratuitous ski pass for patrol services is a volunteer and exempt from coverage under the Workers’ Compensation Act, even though the gratuitous ski pass may be used by someone other than the volunteer ski patrol member. I would therefore set aside the order of the Panel and remand the cause with directions to instruct the ALT to deny claimant benefits.