W.C. No. 4-111-369Industrial Claim Appeals Office.
January 8, 1998
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Rumler (ALJ), which awarded the claimant permanent total disability benefits. We affirm.
The claimant, a roofer, sustained compensable injuries to his right achilles tendon and left rotator cuff. Relying on the testimony of the claimant’s vocational expert, the ALJ determined that the residual effects of these injuries render the claimant unable to return to his former employment, and preclude him from earning wages in any other employment.
The ALJ also found that the claimant currently resides in a rent-free apartment. In exchange for the free apartment, the claimant receives rent checks from other tenants and passes them on to the apartment owner. The claimant also takes reports from tenants concerning maintenance problems. However, the ALJ found that the claimant “does not perform any maintenance nor does he perform any duties to repair any of the apartments for the next tenant.” Further, the claimant must “pay to have the lawn mowed and the walk shoveled during the winter time in order for him to continue to receive free rent.”
The ALJ found that the activities which the claimant performs for the apartment owner do not constitute “work to obtain any wage or salary.” Moreover, the ALJ determined that the free rent does not constitute a “wage.”
On review, the respondents make two arguments. First, they contend that the ALJ erred in determining that free rent does not constitute a “wage” for purposes of § 8-40-201(16.5)(a), C.R.S. 1997. Second, the respondents argue that the claimant’s activities constitute “employment” for purposes of the statute. We do not consider the respondents’ argument concerning the definition of “wages” because we conclude that the evidence supports the ALJ’s determination that the claimant was not “earning” any wages in “employment.”
For purposes of § 8-40-201(16.5)(a), the question of whether the claimant is able to “earn” wages in any “employment” is one of fact for determination by the ALJ. Best-Way Concrete Co. v. Baumgartner, 908 P.2d 1194 (Colo.App. 1995). Consequently, the ALJ’s order must be upheld if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 1997. In applying the substantial evidence test, we are obliged to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations and the plausible inferences which she drew from the evidence. Metro Moving Storage Co. v. Gussert, 914 P.2d 411
(Colo.App. 1995).
It is true, as the respondents argue, that § 8-40-201(8), C.R.S. 1997, defines “employment” as “any trade, occupation, job, position, or process of manufacture.” However, the mere fact that a particular service may be one encompassed by the term “employment” does not mean that performance of the service always proves the ability to “earn” a wage in “employment.” Best-Way Concrete Co. v. Baumgartner, supra. To the contrary, evidence in a particular case may show that, although the claimant receives value for the performance of some service, the putative employer is acting charitably in providing the value and accepting the claimant’s service. See Lobb v. Industrial Claim Appeals Office, ___ P.2d ___ (Colo.App. No. 97CA0212, October 30, 1997).
Here, the ALJ has determined that the “special set of circumstances” between the claimant and the apartment owner does not demonstrate the claimant’s ability to “earn” wages in bona fide “employment.” To the contrary, the ALJ found that the claimant’s services as a “human mailbox” are insignificant when compared to the value he receives in the form of free rent and a telephone. Thus, the ALJ implicitly concluded that this “arrangement” is essentially charitable in nature, and does not prove that the claimant actually has the ability to “earn” wages in “employment.” Cf. Portillo v. Longmont Foods, W.C. No. 4-130-335 (November 13, 1995) (fact that employer paid claimant for “light duty” after the injury did not vitiate award of permanent total disability benefits where evidence permitted inference that payments were made as a result of charity, or in an attempt to avoid an award of permanent total disability benefits) see also, Haislip v. HCC Foothills Care Center, Inc., W.C. No. 4-133-841 (April 4, 1996) (copy contained in file).
Since the evidence supports the ALJ’s determination that the claimant does not have the ability to “earn” wages in “employment,” we need not consider whether the provision of free rent constitutes “wages.”
IT IS THEREFORE ORDERED that the ALJ’s order dated March 5, 1997, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL ________________________________ David Cain ________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed January 8, 1998 to the following parties:
Clifton Glasper, 136 N. Washington St., Apt. 106, Denver, CO 80203
Donald E. Jagger Roofing Co., P.O. Box 56, Dupont, CO 80024-0056
Subsequent Injury Fund, (Interagency Mail)
Colorado Compensation Insurance Authority, Michael J. Steiner, Esq. (Interagency Mail)
David L. Smith, Esq., 1700 Broadway, Ste. 1700, Denver, CO 80290-1701 (For the Respondents)
Marshall A. Fogel, Esq. and Kristin D. Sanko, Esq., 1199 Bannock St., Denver, CO 80204 (For the Claimant)
By: _______________________________