W.C. No. 4-383-617Industrial Claim Appeals Office.
March 28, 2001
FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Wheelock (ALJ) which determined the claimant suffered a compensable injury and required them to pay workers’ compensation benefits. We affirm.
The claimant was employed by Bowl of Gold Resorts as a casino manager, earning a salary of $750 per week. On March 13, 1998, the casino closed. From March 13 until the end of April 1998, the claimant assisted the casino in winding down its affairs.
The ALJ found the claimant suffered a compensable injury from the work she performed for the employer starting the end of January 1998 and continuing to the end of April 1998. The ALJ determined the injury aggravated the claimant’s pre-existing condition in her arms, shoulders, neck and back. Furthermore, the ALJ determined the average weekly wage to be $750, and found that, as a result of the injury, the claimant was temporarily totally disabled commencing May 1, 1998.
I.
On review the respondents first contend the ALJ’s findings of fact are insufficient to permit appellate review. Specifically, they contend the ALJ failed to determine whether the claimant’s injury occurred before March 13, 1998, when there was an express contract of hire or after March 13 when the claimant alleged an implied contract of hire. We disagree.
Where the industrial “injury” is traceable to a particular time, place and cause the claimant has sustained an “industrial accident.” Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993); CFI Steel Corp. v. Industrial Commission, 650 P.2d 1332 (Colo.App. 1982) (the term “injury” encompasses both accidental injuries and occupational diseases). In contrast, where an “injury” is acquired in the ordinary course of employment and is a natural incident of the employment, the claimant has sustained an “occupational disease.” Climax Molybdenum Co. v. Walter, 812 P.2d 1168 (Colo. 1991); Campbell v. IBM Corporation, 867 P.2d 77 (Colo.App. 1993). Where the claimant suffers an occupational disease and is exposed to the hazards of the disease during successive employments, liability for the occupational disease is governed by the “last injurious exposure rule.” Robbins Flower Shop v. Cinea, 894 P.2d 63
(Colo.App. 1995). Section 8-41-304(1), C.R.S. 2000, provides that the employer in whose employment the claimant was last injuriously exposed and “suffered a substantial, permanent aggravation” of the disease is solely liable for all compensation benefits due on account of the disease. The purpose of the rule is to relieve the claimant of the burden of trying to prove the exact contribution from multiple employments. Union Carbide Corp. v. Industrial Commission, 196 Colo. 56, 581 P.2d 734 (1978).
Furthermore, the ALJ is not held to a crystalline standard in articulating her findings of fact. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000). Rather, the ALJ’s findings are sufficient if the basis for the award is apparent from the order. Riddle v. Ampex Corp., 839 P.2d 489
(Colo.App. 1992); Boice v. Industrial Claim Appeals Office, 800 P.2d 1339 (Colo.App. 1990).
Here, the ALJ’s findings reflect her determination that the claimant sustained an occupational disease, and that the respondents are liable for the injury under the last injurious exposure rule. The ALJ found the injury occurred on March 12, 1998, and was caused by the “work [the claimant] performed for Lucky Lola’s as a casino manager starting the end of January 1998.” (Finding of Fact 1). The ALJ further found that the worked performed by the claimant for Bowl of Gold doing business as Lucky Lola’s” between March 13 and the end of April 1998 resulted in a “permanent substantial aggravation of her pre-existing injury and disease process to the claimant’s arms, shoulders, neck, and back.” (Finding of Fact 6).
The ALJ’s finding of an occupational disease is supported by substantial evidence in the medical records and the testimony of Dr. Hall. (Tr. pp. 146, 151; Dr. Hall December 13, 198; Dr. Hamilton March 28, 2000). Furthermore, the respondents do not dispute the existence of an employment relationship between the claimant and the employer on March 12, 1998. Consequently, we may not disturb the ALJ’s finding the claimant suffered a compensable injury.
II.
However, the respondents contend there was no employment relationship after March 13, 1998, when the ALJ found the injury was substantially and permanently aggravated. Therefore, they argue they are not liable for the injury. In support, the respondents rely on evidence that there was no discussion about the rate of pay the claimant would receive for her work in closing the casino. They also argue the sole evidence of an employment relationship is the claimant’s testimony that she expected to be paid for the work she performed in closing the casino after March 13. Again we disagree.
An employee is defined as a person “in the service of any person, association of persons, firm, or private corporation, including any public service corporation, personal representative, an assignee, trustee, or receiver, under any contract of hire, express or implied.” Section 8-40-202(1)(b), C.R.S. 2000. In Colorado a contract of hire requires the exchange of things of value and the promise of remuneration. Rocky Mountain Dairy Products v. Pease, 161 Colo. 216, 422 P.2d 630 (1966). However, in a workers’ compensation setting, the requirement of a contract of hire should not be applied in a technical or formal way. Olsen v. Industrial Claim Appeals Office, 819 P.2d 544 (Colo.App. 1991).
The existence of a contract of hire is generally one of fact for resolution by the ALJ. Rocky Mountain Dairy Products v. Pease, supra. Because the issue is one of fact, we must uphold the ALJ’s order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000.
Here, the ALJ found there was an implied promise of remuneration and an actual payment of remuneration in exchange for the claimant’s work between March 13 and the end of April 1998. Further, the ALJ implicitly found the claimant’s expectation of payment was reasonable. In support the ALJ found the casino was owned by Paul Boghossian (Boghossian) who hired the claimant as the manager at a wage of $750 per week. The ALJ found that at the request of the assistant comptroller, Valerie Cameron (Cameron), Boghossian hired the claimant to assist with the casino closure. The ALJ found that the claimant’s subsequent work was a direct benefit to Boghossian because the employer had to vacate the premises by the end of March 1998. The ALJ further found that Boghossian ordered the sale of the casino’s personal property and that Boghossian knew the claimant would be paid for her services from the personal property.
The respondents’ arguments notwithstanding, there is substantial, albeit conflicting evidence to support the ALJ’s finding of an implied contract of hire. The claimant denied Cameron’s testimony that she helped close the casino out of her friendship with Cameron. (Tr. p. 118). To the contrary she stated she did it because she “needed money” and knew she “was going to be paid for it, one way or another.” (Tr. pp. 90, 119).
Cameron admitted Boghossian told her that in exchange for moving everything out she could take all of the equipment he pointed out to sell at a garage sale, with the proceeds split between Cameron and the claimant. (Tr. p. 36). Cameron stated that she subsequently told the claimant that it would be split in thirds with the claimant’s husband, who had also helped with the closing, to a get one-third. (Tr. p. 36). Further, Cameron admitted she gave the claimant $700 from the garage sale proceeds “for what she helped me with.” (Tr. p. 70).
However, the respondents contend that the property which allegedly constituted payment for the claimant’s work was property the employer had abandoned, and that Boghossian allowed it to be sold by Cameron in lieu of taking it to the dump. Under these circumstances, the respondents argue there was no consideration for the property received by the claimant since it was only made available after all the closing work was completed.
Cameron stated that the equipment which was sold to pay the claimant was “abandoned” by Boghossian after it was moved from the casino to the Loose Caboose. (Tr. September 25, 2000, p. 22, 35). However, the ALJ was unpersuaded there was a lack of consideration for the claimant’s work after March 13. See Colorado Springs Motors, Ltd. v. Industrial Commission, 165 Colo. 504, 441 P.2d 21
(1968) (ALJ may credit all, part, or none of a witness’ testimony); Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966) (ALJ is not required to explicitly discuss defenses or theories she rejected); Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000) (we may consider findings which are necessarily implied by the ALJ’s order). The ALJ’s determination is supported by substantial evidence in the testimony of the claimant and Cameron concerning the amount they made from the sale of the property.
III.
Next, the respondents contend the ALJ abused her discretion in determining the claimant’s average weekly wage to be $750. We perceive no abuse.
Section 8-42-102(2), C.R.S. 1999, provides that the average weekly wage shall be based on the remuneration the claimant received at the time of the injury. The overall purpose of the statutory scheme is to “arrive at a fair approximation of the claimant’s wage loss and diminished earning capacity” from the industrial injury. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993).
There is substantial evidence in the record to support the ALJ’s determination of the average weekly wage. It is undisputed the claimant was paid $750 per week as the casino manager. The claimant testified that the duties she performed from March 13 through April 1998 were similar to the duties of a casino manager. The claimant testified that the value of personal property she received from the casino for her work after March 13 was comparable to her weekly salary at the casino prior March 13. In particular she stated she received a combination of cash and merchandise worth $4,500 for the 6 weeks she worked to close the casino, or $1,500 for a two week period of work. (Tr. p. 129, 142). Based upon the claimant’s 15 year experience in the casino industry the ALJ found the claimant had an understanding of the reasonable value of such personal property and, therefore, the ALJ determined that a fair estimate of the average weekly wage was $750.
IV.
Finally, we reject the respondents’ contention the ALJ delegated preparation of specific findings of fact and conclusions of law to the claimant’s counsel in violation of 8-43-215 C.R.S. 2000. Section 8-43-215 provides that at the conclusion of a hearing the ALJ shall issue a written order which shall contain specific findings of fact and conclusions of law. However, §8-43-215 does not prohibit the ALJ from delegating the duty of drafting proposed findings of fact and conclusions of law to one of the parties.
To the contrary, our appellate courts have repeatedly declined to reverse trial court orders merely because they were originally drafted by one of the parties. In Ficor, Inc. v. McHugh, 639 P.2d 385 (Colo. 1982), and Uptime Corp. v. Colorado Research Corp., supra, our Supreme Court held that if the findings are otherwise sufficient, they are not weakened or discredited merely because they were originally drafted by one of the parties. Rather, the court in Uptime concluded that it is presumed on appeal the fact finder “examined the proposed findings and agreed that they correctly stated the facts as he himself found them to be; otherwise, he would not have adopted them as his own.”420 P.2d at 235. We are unpersuaded that there is any basis from departing from these holdings.
The ALJ’s written findings of fact are consistent with, and reflect a logical extension of her oral findings. (Tr. pp. 168-172). Therefore, we perceive no reversible error because the claimant’s counsel drafted the written findings. See A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded).
IT IS THEREFORE ORDERED that the ALJ’s order dated September 29, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
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. 2000. 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 March 28, 2001 to the following parties:
Carol Borden, 1502 S. Washington, Roswell, NM 88203
Bowl of Gold Resorts, Paul Baghosian, Armor Cast Products Company, 13230 Saticoy St., North Hollywood, CA 91605
TIG Insurance, P. O. Box 17005, Denver, CO 80217
TIG Insurance, Jennifer Napier, Crawford Company, P. O. Box 6502, Englewood, CO 80155-6502
Steven U. Mullens, Esq., P. O. Box 2940, Colorado Springs, CO 80901-2940 (For Claimant)
W. Berkeley Mann, Jr., Esq., P. O. Box 22833, Denver, CO 80222 (For Respondents)
BY: A. Pendroy