IN RE ANDERSON, W.C. No. 4-272-301 (11/27/96)


IN THE MATTER OF THE CLAIM OF GARY ANDERSON, Claimant, v. A M SITE SERVICES, INC., Employer, and COLORADO COMPENSATION INSURANCE AUTHORITY, Insurer, Respondents.

W.C. No. 4-272-301Industrial Claim Appeals Office.
November 27, 1996

The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which determined that the claimant was excluded from the provisions of the Workers’ Compensation Act (Act), and therefore, allowed the respondents to withdraw their admission of liability. We affirm.

The ALJ found that the claimant is the president and sole stockholder of a corporation known as A M Services, Inc, which does construction. The ALJ also found that the claimant purchased workers’ compensation insurance coverage for the corporation from the Colorado Compensation Insurance Authority (CCIA). The claimant testified, and the ALJ further found that the claimant informed the insurance agent that he intended to be included in the workers’ compensation coverage when he was performing physical labor at a construction site, but not when he was performing office work as the president of the corporation.

In October 1995, the claimant was injured while performing manual labor at a construction site. The CCIA filed an Admission of Liability and paid benefits. However, the respondents subsequently asserted that the Admission was improvidently filed. In support, the respondents argued that the claimant elected to exclude himself from the provisions of the Act in accordance with former § 8-41-202 C.R.S. (1995 Cum. Supp.) [amended 1996 Colo. Sess. Laws, ch. 137 at p. 646 effective May 1, 1996]. That statute states:

“Notwithstanding any provisions of article 40 to 47 of this title to the contrary, a corporate officer of a corporation or a member of a limited liability company may elect to reject the provisions of articles 40 to 47 of this title.” (Emphasis added).

Subsection 8-41-202(4)(a) defines “corporate officer” as the “chairman of the board, president, vice-president, secretary or treasurer who is an owner of at least ten percent of the stock of the corporation.”

The respondents further asserted that the claimant’s election was not discovered before the CCIA filed the Admission of Liability because the claimant inadvertently listed the wrong social security number on the “Employer’s First Report of Injury.” Consequently, the respondents requested an order allowing them to withdraw the Admission.

At a hearing before the ALJ, the claimant did not dispute the error on the Employer’s First Report of Injury. Further, the claimant conceded that he had signed an “Endorsement to Exempt Corporate Officer From Workers’ Compensation Coverage.”See Respondents’ Exhibit 2.

Under these circumstances, the ALJ determined that the Admission was filed by mistake. Consequently, the ALJ granted prospective relief from the respondents’ Admission of Liability.

In his petition to review, the claimant contends that the ALJ’s finding that the claimant informed the insurance agent that he intended to include himself in coverage when he was performing physical labor at a construction site, but not when he was performing office work “supports the conclusion that the claimant is entitled to insurance coverage under the Workers’ Compensation Act and appropriate rules and regulations.” The claimant’s petition to review also generally alleges that “the ALJ did not resolve conflicting evidence in a manner sufficient to allow appellate review,” and that the order is not supported by the law.

The claimant also filed a “Memorandum Brief” and a Petition to Reopen. The brief only asserts that subsequent to the entry of the ALJ’s order, the CCIA charged an insurance premium based upon the claimant’s pre and post-injury earnings. Therefore, the claimant requests an “additional hearing be held on the Petition to Reopen” to determine if the CCIA’s actions constituted an admission of coverage.

For obvious reasons, the order that is subject to our review does not resolve the claimant’s Petition to Reopen. In fact, in his oral findings the ALJ stated that he had no evidence before him concerning the premiums the claimant was required to pay to the CCIA. Further, the ALJ indicated that such evidence may be the basis for taking “another look at this.” (Tr. p. 48). It follows that the issue of whether the claimant is entitled to a hearing on the Petition to Reopen is not properly before us on this appeal. See Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986); cf. Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994) (issue may not be raised for the first time on appeal).

Next, we disagree with the claimant’s assertion that the ALJ’s findings compel a conclusion that the claimant is entitled to insurance coverage. Although the ALJ found that the claimant informed the insurance agent of his desire for limited coverage, the ALJ also found that the claimant signed a written election to reject coverage. (Finding of Facts 3, 4). Because the latter finding is supported by substantial evidence in the record, it must be upheld. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.) General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994 ).

Further, the ALJ found that even though the claimant did not intend to completely exempt himself from coverage, the election to reject coverage was binding and operated as a complete exclusion from the provisions of the Act. (Tr. p. 47) CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765
(Colo.App. 1988), rev’d on other grounds at 783 P.2d 269
(1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings). Thus, it is apparent from the ALJ’s order that he resolved the conflicting evidence by finding that the claimant’s written election to reject coverage was dispositive of his entitlement to insurance coverage under the Act. Under these circumstances, the ALJ’s findings are sufficient to permit appellate review, and no remand is necessary. General Cable Co. v. Industrial Claim Appeals Office, supra, (ALJ not required to make findings of fact on every piece of evidence, just those found persuasive and determinative.).

Moreover, the ALJ’s finding that the claimant exercised his right under former § 8-41- 202 to exclude himself from the provisions of the Act, supports the conclusion that the respondents are not liable for the claimant’s injury See Compare Kelly v. Mile Hi Single Ply, Inc., 890 P.2d 1161 (Colo. 1995) (president and sole shareholder of corporation, who exercised right to reject workers’ compensation coverage barred the rejecting employee from recovery under the Act). Therefore, the ALJ’s order is consistent with the applicable law, and the ALJ did not err in granting prospective relief from the respondents’ Admission of Liability. See HLJ Management Group v. Kim, 804 P.2d 250 (Colo.App. 1990).

The claimant has raised no other specific arguments in support of his appeal. Consequently, the claimant has failed to establish a basis for altering the ALJ’s order.

IT IS THEREFORE ORDERED that the ALJ’s order dated April 25, 1996, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ Kathy E. Dean
____________________________________ Bill Whitacre

NOTICE
Order is final unless an action to modify or vacatethis Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, CO 80203, by filing a petition for reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date this Order is mailed, pursuant tosection 8-43-301(10) and 307, C.R.S. (1996 Cum. Supp.).

Copies of this decision were mailed November 27, 1996
to the following parties:

Gary Anderson, 2035 S. Newark Way, Aurora, CO 80014

A M Site Services, Inc., 1525 S. Ursula Ct., Aurora, CO 80012-5314 % Compensation Insurance Authority, Attn: Carolyn A. Boyd, Esq. (Interagency Mail)

Douglas R. Phillips, Esq., 155 S. Madison, Ste. 330, Denver, CO 80209 (For the Claimant)

BY: _______________________