W.C. No. 4-298-784Industrial Claim Appeals Office.
December 22, 1999
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ) denying his claim for workers’ compensation benefits as a result of an injury allegedly sustained while he was employed by Acme Electric of Salida, Inc. (Acme). Although the claimant failed to file a brief in support of the petition to review, claimant’s counsel submitted a letter alleging the ALJ abused her discretion in denying the claim because the claimant’s testimony was more credible than that presented by the respondents. We affirm.
The claimant testified he was injured on April 4, 1996, while employed by Acme. The claimant acknowledged that Acme was in the electrical business which typically involved digging trenches, wiring and laying cable. (Tr. p. 37). However, the claimant testified that on April 4 Acme’s owner, Clarence Orr, requested the claimant to do cleanup work around Orr’s personal residence. The claimant was injured while working around the residence.
Clarence Orr testified the claimant was no longer employed by Acme on April 4. Rather, Orr testified that on April 2 or 3 he entered into a personal agreement under which the claimant was to work around Orr’s home. Orr’s wife was the bookkeeper for Acme, and she presented testimony and documentary evidence indicating that the claimant’s employment with Acme was terminated on March 22, 1996.
The ALJ credited the evidence presented by Acme and the Orrs and discredited the claimant’s conflicting testimony. The ALJ explicitly noted that the claimant’s testimony demonstrated “too many inconsistencies.” Consequently, the ALJ found the claimant was not Acme’s employee on April 4. In any event, the ALJ determined the claimant’s injuries did not arise out of and in the course of any employment with Acme. The ALJ reasoned that the claimant’s activities while working around the Orr home bore no relation to his ordinary tasks while employed as an electrical worker.
Because the claimant failed to file a brief, the effectiveness of our review is limited. Based on our review of the record and the ALJ’s order we perceive no error.
To establish entitlement to benefits from Acme and its insurer the claimant was required to prove he was Acme’s employee on April 4, 1996. Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991). An “employee” is defined as a person in the service of a firm or private corporation “under any contract of hire, express or implied.” Section 8-40-202(1)(b), C.R.S. 1999. Consequently, even though not every formality attending to the formation of commercial contracts need be established, the claimant was required to show the existence of a contract of hire encompassing competent parties, subject matter, legal consideration, mutuality of agreement, and mutuality of obligation. Aspen Highlands Skiing Corp. v. Apostolu, 866 P.2d 1384 (Colo. 1994).
Here, the parties presented conflicting evidence and testimony concerning whether or not there was a contract of hire in force between the claimant and Acme on April 4. Under these circumstances, it was within the ALJ’s purview as the finder of fact to determine the credibility of the witnesses and resolve conflicts in the evidence. Because the ALJ’s findings are supported by substantial, albeit conflicting, evidence in the record, we must uphold the order. Section 8-43-301(8), C.R.S. 1999. We are not at liberty to substitute our judgment for that of the ALJ concerning the relative credibility of the witnesses, or the conclusions to be drawn from the record. Metro Moving and Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
We also agree that, even if the claimant was an employee of Acme, his injury did not arise out of and in the course of such employment. An injury “arises out of” employment when it has its origin in an employee’s work-related functions and is sufficiently related thereto as to be considered part of the employee’s service to the employer in connection with the contract of employment. The “in the course of employment” requirement refers to the time, place, and circumstances under which the injury occurred. Popovich v. Irlando, 811 P.2d 379
(Colo. 1991).
Here, substantial evidence supports the ALJ’s determination that, even if the claimant was employed by Acme on April 4, the injury did not arise out of or in course of that employment. The record establishes that the claimant’s employment with Acme was intermittent, and principally involved electrical work such as digging ditches and installing cable. The claimant’s activities on April 4 were totally unrelated to his ordinary activities with Acme, and the evidence supports the inference the claimant was engaged in purely private employment between the claimant and Orr. Thus, we may not interfere with the order.
IT IS THEREFORE ORDERED that the ALJ’s order dated to January 22, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Robert M. Socolofsky
NOTICE This Order is final unless an action to modify or vacatethe Order is commenced in the Colorado Court of Appeals, 2 East14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date the Order was mailed,pursuant to §§ 8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed December 22, 1999 to the following parties:
Victor A. Calderone, 548 “I” St., Salida, CO 81201
Acme Electric of Salida, Inc., 735 Blake St., Salida, CO 81201
Laurie A. Schoder, Esq., Colorado Compensation Insurance Authority dba Pinnacol Assurance — Interagency Mail (For Respondents)
John K. Priddy, Esq., and J. E. Losavio, Esq., 616 W. Abriendo Ave., Pueblo, CO 81004 (For Claimant)
Larry K. Simons, Esq., 701 N. Grand Ave., Pueblo, CO 81004 (For Mr. Orr)
Richard M. Lamphere, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903
BY: A. Pendroy