W.C. No. 3-990-448Industrial Claim Appeals Office.
October 3, 1996
FINAL ORDER
The pro se respondent seeks review of a final order of Administrative Law Judge Erickson (ALJ), which determined that the claimant sustained a compensable injury while employed by the respondent and awarded benefits and penalties. We affirm.
Relying on the claimant’s evidentiary deposition, the ALJ found that the claimant was employed as a mover by the respondent. In support, the ALJ credited the claimant’s testimony that the respondent supplied moving equipment, that the respondent supervised the work, and that the employment was for an indefinite period with no stated termination date.
On review, the respondent contests the ALJ’s determination that the claimant was an employee and not an independent contractor. The respondent asserts that the claimant’s testimony was not credible because it contained certain inconsistencies concerning the day on which the claimant first became employed, because the claimant did not know her “rate” of pay, and because the claimant failed to produce certain witnesses in support of her claim. We reject these arguments.
The respondent did not request a transcript of the hearing, and the record contains only the claimant’s evidentiary deposition. Under these circumstances, we must presume that the ALJ’s findings concerning evidence presented at the hearing are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).
Further, the record supports the ALJ’s reliance on the claimant’s testimony. To the extent the testimony contained inconsistencies, it was within the power of the ALJ to resolve the inconsistencies and credit those portions which he found believable. El Paso County Department of Social Services v. Donn, 865 P.2d 877 (Colo.App. 1993). We are not free to substitute our judgment for that of the ALJ concerning the credibility of the claimant, or any other witness. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Although the claimant’s testimony could be viewed as reflecting some inconsistencies or lapses of memory, it is not so flawed as to be found incredible as a matter of law Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986). Further, those portions of the testimony cited by the ALJ support the conclusion that the claimant was an employee, not an independent contractor. See Brush Hay and Milling Co. v. Small, 154 Colo. 11, 388 P.2d 84 (1963); Stampados v. Colorado D S Enterprises, Inc., 833 P.2d 815 (Colo.App. 1992).
Insofar as the respondent’s brief can be construed as making other arguments, we find them to be without merit.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 24, 1996, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
________________________________ David Cain
________________________________ Dona Halsey
NOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to review with the court, with service of a copy of the petition upon 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. (1996 Cum. Supp.).
Copies of this decision were mailed October 3, 1996 to the following parties:
Carole Clarke, 11615 N. 50th St., Apt. F, Tampa, FL 33617
Marc DeLeon d/b/a A and A Moving Storage, 2520 Galena St., Aurora, CO 80010-1152
Scott M. Busser, Esq., 300 S. Jackson St., Ste. 570, Denver, CO 80209 (For the Claimant)
Alan Greenberg, Esq., 5299 DTC Blvd., Ste. 500, Englewood, CO 80111 (For the Claimant)
Employer Compliance Unit, Attn: Rebecca Greben (Interagency Mail)
Special Funds Unit, Attn: Barbara Carter (Interagency Mail)
By: _______________________