W. C. No. 4-663-598.Industrial Claim Appeals Office.
July 13, 2007.
FINAL ORDER
The respondent employers seek review of an order of Administrative Law Judge (ALJ) dated February 1, 2007 that ordered them to pay benefits to a domestic worker, subject to a penalty for being uninsured. We affirm.
The ALJ’s Findings of Fact, Conclusions of Law, and Order (Order) reflect the following facts. The employers hired the claimant in September 2003, primarily to provide care for their youngest child. The claimant’s duties included performing some cooking and cleaning. The employers paid the claimant $350 a week and provided her a room in their residence. The claimant did not work all the time she was in the employers’ home, but she worked five days each week on a full-time basis. The claimant worked nowhere else, although the employers’ did not prohibit her from doing so. The employers’ family and the claimant relocated to a rental home around March 1, 2005, during a remodeling project on the residence in Boulder County. Claimant continued working for the employers.
On March 31, 2005, the claimant slipped and fell on carpeted steps in the rental home while carrying a vacuum cleaner. She advised the employers that day about her fall and they arranged for her to receive massage therapy for soreness in her left shoulder. The respondents had no workers’ compensation insurance at the time of the reported injury. The claimant testified that she “experienced a pop and increased pain in her left shoulder” while lifting the employers’ child on June 27, 2005, but she did not report or
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record any corresponding injury. The claimant had helped load a truck with home furnishings in anticipation of visiting her home that was under construction in Juarez, Mexico. She returned in July 2005 from her trip to Mexico. She described being in severe pain and a lack of movement in her left arm and shoulder. The claimant did not work after July 29, 2005. On that date, the employers took the claimant to a medical clinic where a physician’s assistant reported that the claimant experienced severe left shoulder pain following a fall down stairs and noted that she experienced progressive worsening with a decreased range of motion. A few days later a physician at the clinic made additional findings related to the claimant’s fall down stairs and recommended an MRI. One of the employers was present at the examination, but did not dispute the mechanism of the injury.
The claimant was the employers’ employee and sustained a compensable industrial injury on March 31, 2005. The injury prevented her from working by July 29, 2005 due to sever pain in her left shoulder and the claimant did not work after that date.
A chiropractor subsequently treated the claimant and diagnosed a torn supraspinatous muscle and AC joint separation. He released the claimant from his care on August 31, 2005 and on December 27, 2005, he advised the claimant she could return to light housekeeping chores, primarily with her right arm. The employers offered the claimant modified employment, in writing, on December 19, 2005 in accordance with the restrictions imposed by the chiropractor. However, the claimant did not begin modified employment.
The ALJ ordered the employers to pay temporary total disability benefits starting July 30, 2005 and ending December 19, 2005, as well as medical benefits. He increased the amount by 50 percent because he found the employers to be uninsured. The employers assert on appeal that the ALJ erred in finding that the claimant suffered a compensable, disabling injury as a result of performing services for them. They further argue that the claimant worked as a domestic worker under the Workers’ Compensation Act, thereby relieving them of being considered an employer obligated to maintain workers’ compensation insurance. Finally, the employers assert that the ALJ erred by finding the claimant to be their employee, rather than an independent contractor. We are not persuaded that the ALJ committed any reversible error.
In support of their contention that the claimant did not sustain a compensable injury, the employers assert that the claimant sustained no disability until after her return from Mexico where, according to the employers, the claimant was working on her home. The employers also argue that the only other date on which the claimant could have been
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disabled is on June 27 or July 27, 2005, according to the claimant’s testimony. We conclude that the record and the ALJ’s findings are sufficient to establish March 31, 2005 as the date of the claimant’s compensable injury. Moreover, we find nothing incongruous about the ALJ distinguishing the date of injury from the date of disability.
Section § 8-42-101(1)(a), C.R.S. 2006 imposes upon every employer the duty to furnish such medical treatment as may reasonably be needed at the time of the injury and thereafter during the disability to cure and relieve the employee from the effects of the injury. However, to prove entitlement to temporary total disability benefits the claimant must prove the industrial injury caused a “disability.” § 8-42-103(1), C.R.S. 2006; PDM Molding, Inc. v. Stanberg, 898 P.2d 542 (Colo. 1995). The term “disability, “as used in workers’ compensation cases, connotes two elements. The first is “medical incapacity” evidenced by loss or impairment of bodily function. The second is temporary loss of wage earning capacity, which is evidenced by the claimant’s inability to perform her prior regular employment. Culver v. Ace Electric, 971 P.2d 641 (Colo. 1999). This element of “disability” may be evidenced by showing a complete inability to work, or by physical restrictions which impair the claimant’s ability effectively to perform the duties of her regular job. See Ortiz v. Charles J. Murphy Co., 964 P.2d 595
(Colo.App. 1998).
Whether the claimant has proved disability, including proof that the injury has impaired the ability to perform the pre-injury employment, is a factual question for the ALJ. Lymburn v. Symbios Logic, 952 P.2d 831
(Colo.App. 1997). We must uphold the ALJ’s determination if it is supported by substantial evidence. § 8-43-301(8), C.R.S. 2006. This standard of review requires us to defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo.App. 2002).
The claimant provided fairly specific testimony concerning her fall. She testified that on or about March 31, 2005, she was going down steps from the second floor of the employer’s rented home where she had been cleaning. She was carrying a vacuum and her foot slipped when she took a second step. She fell on her bottom and landed on the second to last stair. She initially believed she had injured her lower back, but her arm hurt, as well. Tr. (11/6/06) at 33. Lorraine Scott, a physician’s assistant, examined the claimant on July 29, 2005 and noted that (in April, rather than March 31st) the claimant “sustained a fall down a flight of stairs” and presented with “sever left shoulder pain.” Exhibit 1 at 11. Dr. Ferris examined the claimant on August 3, 2005 and also recorded that the claimant fell down stairs as described by the claimant in her testimony. He also
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noted that the claimant complained of shoulder pain. Dr. Ferris diagnosed left acromioclavicular arthropathy. Exhibit 1 at 11-12. Dr. Ray treated the claimant in August 2005, suspected a torn left supraspinatous tendon, and noted that the claimant complained of shoulder pain. Exhibit 2 at 17. She also recorded that the claimant’s complaints started after she fell down steps while vacuuming. Exhibit 2 at 21. The ALJ expressly credited the claimant’s testimony and “the consistent account in the medical records” to find that the claimant sustained her burden to establish that she suffered an injury and corresponding wage loss. Order at 6, ¶¶ 25-26.
The ALJ’s determination that the claimant met his burden to prove a compensable injury is supported by substantial evidence and is, therefore, binding on appeal. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Furthermore, proof of causation is not limited to medical evidence. Rather, circumstantial evidence in the form of lay testimony may be sufficient to permit an inference of causation. Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Lay testimony, if credited, is sufficient to establish the injury was the cause of the claimant’s disability and consequent wage loss Lymburn v. Symbios Logic, supra.
The ALJ’s assessment of the probative value of the evidence and his credibility determinations are matters solely within his province. We may not set aside a credibility determination unless the testimony of a particular witness, although direct and unequivocal, is “so overwhelmingly rebutted by hard, certain evidence directly contrary” that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo.App. 1997). Consequently, the ALJ’s credibility determinations are binding except in extreme circumstances. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000). Moreover, the ALJ was not required to specifically reject evidence he considered to be unpersuasive. Jefferson County Public Schools v. Dragoo, 765 P.2d 636, 639 (Colo.App. 1988).
The employers contend that “[a] claimant facing the existence of a subsequent injury/intervening cause has the burden of proof to show that the subsequent injury did not destroy the causal link between the Claimant’s original alleged work related injury and the subsequent injury.” Employers’ Brief at 9. We disagree.
The existence of an “intervening event” is an affirmative defense to the employers’ liability. Consequently, it is the employers’ burden to prove that the claimant’s condition is attributable to a subsequent intervening injury and not the industrial injury. See Atlantic Pacific Insurance Co. v. Barnes, 666 P.2d 163
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(Colo.App. 1983) (burden of proof determined by which party would be successful if no evidence was presented; burden of proof is then placed on the adverse party); Tovar v. E K of Denver, Inc., W. C. Nos. 4-586-792 4-606-996 (August 15, 2005); Tiffany v. Wal-Mart W. C. No. 4-272-765(April 27, 1998).
The employers also assert that the claimant performed “domestic work” as that term is used in the Workers’ Compensation Act. Section §8-40-302(4) provides that employers of persons who are regularly employed less than full-time doing “domestic work or maintenance, repair, remodeling, yard, lawn, tree or shrub planting or trimming, or similar work about the private home of the employer” are exempt if the employer has no other employees subject to the Act and such employments are “not within the course of the trade, business, or profession of said employers.” The employers assert that, contrary to the ALJ’s findings, the claimant worked less than full-time. However, the ALJ found that the claimant “was regularly employed as a full-time employee,” even after the employers’ small child began attending daycare at a local facility. The ALJ also found that the claimant’s duties required her to work during five days each week. Furthermore, the ALJ found that, although the claimant’s work schedule was not fixed, she was expected to be available to assist with the small child’s care. Order at 3, ¶¶ 7-8. The claimant testified to the effect that she worked from 2003 through 2005, Monday through Friday, 7:15 a.m. to 10:00 p.m. or later, and stated that the smaller “was always” with her. Tr. (11/6/06) at 21-22, 59. She also testified that the employers paid her $350 a week for her services. Tr. (11/6/06) at 20-21. The claimant further testified that she cleaned the house often, laundered clothes, and cooked meals. Tr. (11/6/06) at 47. One of the employers testified that the claimant worked “mainly Monday through Friday.” Tr. (4/25/06) at 45. One of the employers also testified that the claimant worked “regular hours” between Monday and Friday. Tr. (4/25/06) at 17. The claimant added that she spent her nights in the residence during her work week. Tr. (11/6/06) at 22-24. The record supports the ALJ’s corresponding finding that the claimant worked full-time.
Finally, the employers assert that the claimant was not their employee, but an independent contractor. The respondents argue that the relevant statutory factors compel the conclusion that the claimant was an independent contractor. We are not persuaded that the ALJ erred.
Pursuant to § 8-40-202(2)(a), C.R.S. 2006, “any individual who performs services for pay for another shall be deemed to be an employee” unless the person 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.”
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The putative employer may establish that the claimant was free from direction and control and engaged in an independent business or trade by proving the presence of some or all of the nine criteria set forth in § 8-40-202(2)(b)(II). See Nelson v. Industrial Claim Appeals Office, 981 P.2d 210 (Colo.App. 1998).
The factors set forth in § 8-40-202(2)(b)(II) indicating that an individual is not an independent contractor include the individual being paid a salary or hourly rate instead of a fixed contract rate, and being paid individually rather than under a trade or business name. Conversely, independence may be shown if the person for whom the services are performed provides no more than minimal training to the claimant, does not dictate the time of performance, does not establish a quality standard for the claimant’s work, does not combine its business with the business of the claimant, does not require the claimant to work exclusively for a single person or company, and is not able to terminate the claimant’s employment without liability.
This statute creates a “balancing test” to overcome the presumption of employment contained in § 8-40-202(2)(a) and establish independent contractor status. Nelson v. Industrial Claim Appeals Office, supra. The question of whether the employer has presented sufficient proof to overcome the presumption is one of fact for the ALJ. Accordingly, we are bound by the ALJ’s determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. 2006; F.R. Orr v. Rinta, 717 P.2d 965
(Colo.App. 1985).
The respondents contend that the proper balancing of the criteria set forth in § 8-40-202(2)(b)(II) compels the conclusion that the claimant was an independent contractor. In support of its argument, the respondents set forth the evidence that might have supported a conclusion contrary to that reached by the ALJ. Some of the statutory elements indicating the claimant’s independence were met. For instance, the ALJ found that the claimant was not required to work exclusively for the employers and was provided only minimal training. Order at 3, ¶¶ 4, 6 See § 8-40-202(2)(b)(II)(A), (E). However, the ALJ was not persuaded that the claimant was free from the employer’s direction and control in performing her duties and, also, that the claimant was customarily engaged in an independent business related to childcare services. Order at 8, ¶ 6. The ALJ made several corresponding findings. The employers “dictated specific times when Claimant was required to perform childcare duties.” They expected the claimant “to be available throughout each weekday in order to perform other household duties.” The claimant’s testimony supports these findings as noted above. The employers set a “quality standard” for caring for their children. One of the employers explained that the quality standard she expected was”[t]hat my children were cared for in
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a nice way, responsible way.” Tr. (11/6/06) at 99. There was no evidence that the employers could terminate their relationship with the claimant without liability. Furthermore, the claimant did not work under a trade or business name. Exhibit 4 at 33 (indicating claimant paid by check as individual). See Order at 6, ¶ 24.
These findings also support the ALJ’s conclusion that under the totality of the circumstances, there was an employment relationship rather than independent contractor status. That the ALJ might have reached a contrary conclusion is immaterial on review. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090
(Colo.App. 1999).
To the extent that the employers contend that the claimant had the burden to prove she was not an independent contractor, we disagree. Although the claimant had the burden of proving that she was an actual or statutory employee, employers had the burden of proving that she was an independent contractor under § 8-40-202(2)(b)(II). The burden of proof in a workers’ compensation case rests on the party who asserts the affirmative of an issue. See Valley Tree Service v. Jimenez, 787 P.2d 658 (Colo.App. 1990). Section 8-40-202(2)(b)(II) bars independent contractors from bringing workers’ compensation claims, but such bar is an affirmative defense for which the employer bears the burden of proof Stampados v. Colorado D S Enterprises Inc., 833 P.2d 815
(Colo.App. 1992).
IT IS THEREFORE ORDERED that the ALJ • s order dated February 1, 2007, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
Britton Morrell, Esq., The Morrell Law Office, LLC, Greeley CO, (For Claimant).
Thomas L. Kanan, Esq., McElroy, Deutsch, Mulvaney Carpenter, LLP., Denver CO, (For Respondents).
Mr. Seth Chernoff, Spirit Elements, Boulder, CO.
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