IN THE MATTER OF THE CLAIM OF GEORGE ABBOTT, Claimant, v. SANGRE DE CRISTO HOSPICE, Employer, and PHARMACISTS MUTUAL INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-525-702.Industrial Claim Appeals Office.
June 19, 2003.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) dated February 26, 2003, which determined the claimant was an independent contractor when he suffered work-related injuries, and therefore, denied the claim for workers’ compensation benefits. We affirm the denial of benefits.

The claimant worked as an employee of the Sangre de Cristo Hospice (Hospice) from 1991 to June 1998, when he retired. The claimant returned as a temporary employee from January 1999 to February 28, 1999. When the temporary employment ended, the claimant continued to perform occasional odd jobs for Hospice at the rate of $10 per hour. The claimant suffered injuries on December 3, 2001, when he fell from a ladder while repairing a light fixture for Hospice.

Prior to working for Hospice, the claimant ran his own maintenance business called Abbott Maintenance Repair Service. The business had its own checking account and invoices. In January 1993, the claimant closed the business checking account.

In a prior order dated June 11, 2002, the ALJ found the respondents sustained their burden to prove the claimant was engaged in an independent business and was free from the control and direction of Hospice. Therefore, the ALJ determined the claimant’s injury was not compensable. The claimant timely appealed.

On review, we concluded the ALJ’s findings were insufficient to determine whether the claimant was customarily engaged in an independent business at the time of the injuries. Therefore, we set aside the ALJ’s order and remanded the matter for additional findings and the entry of a new order.

On remand, the ALJ issued an order dated February 26, 2003, in which she again determined the claimant was an independent contractor of Hospice and not its “employee” at the time of the industrial injury. In support, the ALJ found that sometime in 2000 or 2001, the claimant performed a plumbing job for Claudia Sniff personally, after which he presented her with an invoice that had “Abbott Maintenance Repair Service” printed on it. (Finding of Fact 18). The ALJ also found the claimant did not work exclusively for Hospice, that the business operations were not combined, and Hospice did not establish a quality standard, provide training, or dictate the time of performance.

On appeal of the February 26 order, the claimant contends the one bill he issued on a business invoice is insufficient to prove he was customarily engaged in his own business. The claimant also contends that the term “customarily” means “usually,” and the ALJ’s finding that the claimant “usually” performs work for free compels the conclusion that the claimant was not “customarily” engaged in an independent business. Further, the claimant contends the record compels the conclusion he was not free from Hospice’s control at the time of the injury. We perceive no reversible error in the ALJ’s order.

Section 8-40-202(2)(a), C.R.S. 2002, provides:

“Notwithstanding any other provision of this section, 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.”

The Court of Appeals has held that, in order to be customarily engaged in an independent business, the worker must “actually and customarily provide similar services to others at the same time he or she works for the putative employer.” Carpet Exchange v. Industrial Claim Appeals Office, 859 P.2d 278 (Colo.App. 1993) at 282. The court indicated that the purpose of this test is to protect the security of workers who receive substantially all of their earnings from one employer.” Id. at 282. Accordingly, the performance of occasional or insubstantial service for others does not establish that worker is “customarily” engaged in an independent trade, occupation or business. Carpet Exchange v. Industrial Claim Appeals Office, 859 P.2d at 28 ; Barge v. Industrial Claim Appeals Office, 905 P.2d 25, 27 (Colo.App. 1995).

Given the statutory purpose of protecting the security of workers who receive substantially all of their earnings from one employer, we conclude that performing work for friends and relatives without charge would not constitute an independent “business” as contemplated by the statute. The only other evidence is of the one independent paid job the claimant performed in 2000 or 2001. We conclude as a matter of law that one job is insufficient to constitute customary engagement in an independent trade or business, even given the dearth of jobs the claimant performed for the employer around the time of the injury. Compare Stevenson v. Industrial Commission, 705 P.2d 1020 (Colo.App. 1985) (one absence cannot constitute excessive absenteeism as contemplated by unemployment insurance statute). Consequently, we need not consider whether the claimant was free from control and direction. See Carpet Exchange of Denver, Inc. v Industrial Claim Appeals Office, supra; Barge v. Industrial Claim Appeals Office, supra (both conditions must exist in order to rebut the presumption of an employment relationship under the statute).

Nonetheless, to recover benefits as an employee under the Colorado Workers’ Compensation Act (Act), the claimant must be subject to the provisions of the Act at the time of the industrial injury. Section 8-41-301(1)(a), C.R.S. 2002. Under § 8-4-202(1)(b), C.R.S. 2002, the term “employee” does not include individuals whose “employment is but casual and not in the usual course of the trade, business, profession, or occupation of the employer.” Casual employment is characterized as employment which is occasional, incidental, temporary, emergent, or haphazard. Heckman v. Warren, 238 P.2d 854 (1951); Lackey v. Industrial Commission, 249 P. 662 (1926); Hallum v. Industrial Claim Appeals Office
(Colo.App. No. 99CA2182, September 14, 2000) (not selected for publication), setting aside Roop v. Hallum, W.C. No. 4-384-408 (May 3, 1999).

Here, the ALJ found, consistent with the claimant’s statement that he considered himself as “retired,” that the claimant has performed a very small number of jobs since 2000. This finding is not disputed and is supported by substantial evidence in the record. (See Tr. pp. 54, 58, 62, 64, 70-71, 79). Furthermore, the ALJ determined that because the claimant has worked so little since 2000, a comparison of the number of jobs the claimant performed for Hospice and others was not determinative of whether the claimant was customarily engaged in an independent trade or business at the time of the industrial injury. (Finding of Fact 20).

As we read the ALJ’s order, she has implicitly determined that the claimant has only engaged in occasional, haphazard employment during his retirement. This determination compels the conclusion the claimant was a “casual” employee at the time of the injury and thus, not an “employee” under the Act. See Brawner-Ahlstrom v. Husson, 969 P.2d 738 (Colo.App. 1998) (it is proper to affirm the ALJ’s order where the findings of fact support the order even if some of the ALJ’s reasoning is incorrect or incomplete); see also Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (the ALJ is not held to a crystalline standard in articulating her findings of fact and we may consider findings that are necessarily implied by the ALJ’s order).

In view of this disposition, we need not address the claimant’s further arguments. The ALJ’s evidentiary findings are supported by substantial evidence, and we may not disturb them. Section 8-43-301(8), C.R.S. 2002. Moreover, the findings support the conclusion that the respondents sustained their burden to prove that at the time of the injury, the claimant was not working as an employee as defined by the Act. Consequently, the ALJ did not err in denying the claim for workers’ compensation benefits.

IT IS THEREFORE ORDERED that the ALJ’s order dated February 26, 2003, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

__________________________________ Kathy E. Dean
__________________________________ Dona Halsey

NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2002. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.

Copies of this decision were mailed June 19, 2003 to the following parties:

George Abbott, 2014 Lynwood Ln., Pueblo, CO 81005-2710

Mike Gruber, Sangre de Cristo Hospice, 704 Elmhurst Pl., Pueblo, CO 81004

Todd TerHark, Pharmacists Mutual Insurance Company, P. O Box 370, Algona, IA 50511

Marti Meyers, Adjuster, Crawford Company, 9200 E. Panorama Circle, #160, P. O. Box 6502, Englewood, CO 80155

Charles J. Malouff, Esq., 1225 N. Grand, #206, Pueblo, CO 81003 (For Claimant)

Richard M. Lamphere, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903 (For Respondents)

BY: A. Hurtado