IN THE MATTER OF THE CLAIM OF ELWOOD T. LOEBER, Claimant, v. U.S. HOME CORPORATION, Employer, and OLD REPUBLIC INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-231-558Industrial Claim Appeals Office.
February 7, 1996

FINAL ORDER

The respondents seek review of an order of Administrative Law Judge Wells (ALJ) which determined that U.S. Home Corporation (U.S. Home) was the claimant’s employer on November 7, 1994, when the claimant sustained a work-related injury, and therefore, ordered the respondents to provide medical benefits. We affirm.

The respondents contend that the evidence compels a finding that the claimant was working as an independent contractor at the time of his injury. In support, the respondents cite Brighton School District v. Lyons, 873 P.2d 26 (Colo.App. 1993). We disagree.

The claimant’s 1994 injury is governed by the provisions of §8-40-202(2), C.R.S. (1995 Cum. Supp.), which apply to injuries occurring on or after April 12, 1993. 1993 Colo. Sess Laws, ch. 103 at 255-358. Section 8-40-202(2) provides that:

“any individual who performs services for pay for another shall be deemed to be an employee, irrespective of whether the common-law relationship of master and servant exists, unless such individual is free from control and direction in the performance of the service, both under the contract for performance of service and in fact and such individual is customarily engaged in an independent trade, occupation, profession, or business related to the service performed.” (Emphasis added).

In Carpet Exchange of Denver, Inc. v. Industrial Claim Appeals Office, 859 P.2d 278 (Colo.App. 1993), the court held that “control and direction” means a “general right to control.” The factors relevant to determining the existence of a “right to control” include whether the compensation is measured by time or lump sum, whether the worker gives all or part of his time to the job, and whether the worker furnishes his own tools and equipment. Brush Hay and Milling Company v. Small, 154 Colo. 11, 388 P.2d 84 (1963); Brighton School District v. Lyons, supra. More important are the questions of whether the worker may be terminated without further liability, and whether the worker is subject to control over the means and methods of accomplishing his work Brush Hay and Milling Company v. Small, supra; Brighton School District v. Lyons, supra; Frank C. Klein v. Colorado Compensation Insurance Authority, 859 P.2d 323 (Colo.App. 1993).

The resolution of these issues is a question of fact for the ALJ Locke v. Longacre, 772 P.2d 685 (Colo.App. 1989); Weld County Kirby Co. v. Industrial Commission, 676 P.2d 1253 (Colo.App. 1983). Therefore, we must uphold the ALJ’s pertinent factual determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.).

Here, it is undisputed that the claimant and his nephew had a partnership known as Loeber Construction, and initially worked for a subcontractor of U.S. Home. When the subcontractor became insolvent, the claimant and his nephew completed the subcontractor’s job, and were paid by U.S. Home. The claimant then continued to work for U.S. Home until November 7, 1994 when he was injured during a fall from the roof of a house being constructed by U.S. Home.

Based upon the evidence, the ALJ determined that the claimant sustained his burden to prove that he was performing a service for U.S. Home at the time of the injury. Further, the ALJ determined that even if the claimant was engaged in an independent business, the respondents failed to prove that the claimant was in fact free from control and direction in the performance of the services.

The ALJ’s determination that the claimant was subject to control and direction from U.S. Home was based upon the claimant’s testimony. Specifically, the claimant testified that he had daily contact with the U.S. Home supervisor and U.S Home asked him to make changes on many occasions. He also stated that U.S. Home expected him to be on the U.S. Home job site each day and that his nephew was admonished on one occasion because he was absent due to illness. (Tr. pp. 15, 17, 18). The claimant also stated that U.S Home could terminate his employment if the quality of his work was unacceptable, that U.S. Home dictated the time of performance by setting deadlines, and that, in reality, he was not free to contract with any other employer. Thus, the claimant worked exclusively for U.S. Home. (Tr. pp. 10, 13, 16, 18).

Admittedly, the record contains some evidence which, if credited, might support a conclusion that the direction and control exercised by U.S. Home was not inconsistent with the claimant’s status as an independent contractor. However, we may not interfere with the ALJ’s determination to credit the claimant’s testimony. Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970). Furthermore, the claimant’s testimony constitutes substantial evidence in support of the ALJ’s finding that the claimant was, in fact, subject to direction and control in the means and methods of accomplishing his work. Moreover, this finding supports a conclusion that the claimant was U.S. Home’s “employee” at the time of the injury. Section 8-40-202(2); Brush Hay and Milling Company v. Small, supra; Brighton School District v. Lyons, supra; Frank C. Klein v. Colorado Compensation Insurance Authority, supra. Consequently, we reject the respondents’ argument that “no conceivable interpretation” of the evidence indicates that the claimant was an “employee.”

Neither are we persuaded that Brighton School District v. Lyons, supra, compels the result sought by the respondents. First we note tha Lyons involved an injury in 1989, and thus, was decided in accordance with the law in effect prior to the 1993 amendments. Prior to the 1993 amendments, the issue of whether a worker was an an independent contractor was determined by the “right to control” and “relative nature of the work” tests. See Stampados v. Colorado D S Enterprises, Inc., 833 P.2d 815
(1992). While aspects of these tests are relevant to determinations under the statutory scheme, they are not themselves the test.

Furthermore, Lyons is factually distinguishable. Lyons involved an injury during the claimant’s part-time work as an umpire at high school athletic games. The claimant in Lyons was hired on a “per game” basis and was not subject to direction and control or termination during a game. Unlike Lyons, the ALJ found that this claimant worked full-time and continuously for U.S. Home, that this claimant was subject to supervision in the manner his services were performed, and that this claimant could be terminated prior to the completion of the services he was hired to perform.

IT IS THEREFORE ORDERED that the ALJ’s order dated March 22, 1995, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ David Cain
____________________________________ Kathy E. Dean

NOTICE

This Order is final unless an action to modify or vacate this Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).

Copies of this decision were mailed February 7, 1996 to the following parties:

Elwood T. Loeber, 619 N. Petroleum Ave., Florence, CO 81226

U.S. Home Corporation, 5970 S. Greenwood Plaza Blvd., No. 310, Englewood, CO 80111

Gallagher Bassett Services, Inc., Attn: Susan Repko, Sr. Administrator,

5655 S. Yosemite, Ste. 212, Englewood, CO 80111

James A. May, Esq. Peter E. Morgan, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209-3014

(For the Claimant)

Tod E. Fitzke, Esq., 5299 DTC Blvd., Ste. 1300, Greenwood Village, CO 80111-3334 (For the Respondents)

BY: _______________________

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