W.C. Nos. 4-207-439 4-207-547Industrial Claim Appeals Office.
August 21, 1995
FINAL ORDER
The claimant has appealed an order issued by Administrative Law Judge Wheelock (ALJ) insofar as it determined that the respondent, Cheyenne Mountain Zoo, is not liable for the claimant’s injury, and that respondent, Hall’s Drywall Company, is only liable for fifty percent of the workers’ compensation benefits which would ordinarily be payable. We affirm.
The claimant worked at the Cheyenne Mountain Zoo to fulfill a sentencing requirement that he participate in community service. The sentence was imposed because of the claimant’s violation of automobile insurance laws. The sentencing court referred the claimant to Pike’s Peak Community Services, where the claimant was given a choice of placements. The claimant chose to work at the Zoo. As a result of shoveling snow at the Zoo on February 13, 1994, the claimant aggravated a pre-existing degenerative back condition. The claimant’s condition was further aggravated by lifting duties he performed between February 14 and February 24, 1994, while working for Hall’s Drywall.
The ALJ found that the claimant’s work at the Zoo and at Hall’s each contributed 50% to the aggravation of the claimant’s condition. However, the ALJ found that the Zoo could not be held liable for benefits because he was not an employee of the Zoo. Further, relying on Anderson v. Brinkhoff, 859 P.2d 819 (Colo. 1993), the ALJ found that Hall’s was liable for only 50% of the normal benefits because the claimant’s work there accounted for 50% of the aggravation.
On appeal, the claimant contends that he was an employee of the Zoo because the standards set forth in § 8-70-115(1)(b), C.R.S. (1994 Cum. Supp.), have been satisfied. We disagree.
Section 8-40-102(2), C.R.S. (1994 Cum. Supp.), provides that the test for determining whether an individual is an employee for purposes of workers’ compensation, shall be based on the criteria found in § 8-70-115. The statute further states that only the factors specified in §8-40-202(2), and the case law interpreting § 8-70-115 are to be considered.
However, the provisions of § 8-40-202(2) and § 8-70-115(1)(b) are not identical, and the provisions of the former statute are controlling. In relevant part, § 8-40-202(2) defines an employee as an individual who performs services for another “for pay” whereas, § 8-70-115(1)(b) does not require that the services be performed for pay. Here, it is undisputed that the claimant was not paid. Therefore, the claimant is not an employee as defined by § 8-40-202(2).
Nor is the claimant an employee of the Zoo as defined by §8-40-202(1)(b), C.R.S. (1994 Cum. Supp.), because the ALJ’s findings, which are supported by substantial evidence, support the conclusion that the claimant was not performing services under a “contract of hire.”
In light of this resolution, we are not persuaded by the claimant’s contention that § 16-11-701(5), C.R.S. (1994 Cum. Supp.), shows that the legislature intended for individuals performing community service to receive workers’ compensation benefits.
The claimant also contends that the ALJ erred in determining that Hall’s is only liable for 50% of the benefits which would otherwise be payable. Again, we disagree.
The claimant argues that apportionments such as the one authorized i Anderson v. Brinkhoff, supra, apply only to cases where the claimant suffers an occupational disease, as opposed to an accidental injury, which the claimant asserts he sustained here. We agree tha Anderson v. Brinkhoff, supra, applies to occupational diseases. However, it is the injury at Hall’s which is determinative, and we disagree with the claimant’s argument that that injury was “accidental.” An accidental injury is traceable to a particular time, place, and cause See Colorado Fuel Iron Corp. v. Industrial Commission, 154 Colo. 240, 392 P.2d 174 (1964). Where an injury results from the conditions of employment, rather than a specific accident or trauma, the injury is an occupational disease. See Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1994).
Here, the claimant did not attribute the injury at Hall’s to any specific time and place. Rather, the claimant testified that his back pain gradually got worse as he hung sheetrock over the days following his shoveling at the Zoo. Transcript 13. These circumstances support the conclusion that the claimant’s injury is an occupational disease.
It follows that we perceive no error in the ALJ’s determination that Hall’s is only partially liable for the aggravation of the claimant’s back condition. Since the claimant was not an “employee” when he was shoveling at the Zoo, the portion of the aggravation that resulted from shoveling must be considered non-industrial, as was the claimant’s smoking i Anderson v. Brinkhoff, supra. The claimant does not contend that lifting caused his degenerative disc disease, or that it is a necessary precondition to the development of the disease. In any event, the ALJ’s finding that the lifting was only a partial cause of the aggravation of that disease, is supported by substantial evidence. Therefore, the aggravation is “occupational” only to the extent that the claimant’s work at Hall’s contributed to it, and there is no error in the apportionment See Anderson v. Brinkhoff, supra.
IT IS THEREFORE ORDERED that the ALJ’s decision issued October 7, 1994, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Dona Halsey
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed August 21, 1995 to the following parties:
Ross K. Anderson, 2528 E. Monument St., Colorado Springs, CO 80909
Hall’s Drywall Co., Attn: Ray Hall, 3665 E. Wade Lane, Colorado Springs, CO 80906
Hawkeye-Security Insurance Co., Attn: Rich Nustad, P.O. Box 5150, Denver, CO 80217-5150
Pikes Peak Community Services, % Carol A. Finley, Esq., 111 S. Tejon, Ste. 720, Colorado Springs, CO 80903-2253
Colorado Compensation Insurance Authority, Attn: C. Boyd, Esq. (Interagency Mail)
Carol A. Finley, Esq., 111 S. Tejon, Ste. 720, Colorado Springs, CO 80903-2253
(For Respondent Pikes Peak Comm. Services)
David L. Lavinder, Esq., 12835 E. Arapahoe Rd., Tower I, Ste. 200 W, Englewood, CO 80112
(For Respondents Hall Hawkeye)
Steven R. Waldmann, Esq., 303 S. Circle Dr., Ste. 202, Colorado Springs, CO 80910-3000
(For the Claimant)
By: _____________________