W. C. No. 4-693-316.Industrial Claim Appeals Office.
October 3, 2007.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated April 17, 2007 that denied and dismissed the claim. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant has trained and raced horses since 1974 for many different owners at many racetracks throughout the United States. The claimant agreed to come to Colorado and train horses for the respondent at a rate of $500 per week. The respondent also asked the claimant to race some of his horses at Arapahoe Park. At Arapahoe Park, the track pays jockeys for racing horses out of the winnings or entry fees paid by the horse owners. The jockey’s pay for racing is determined by the horse’s finish in the race. The claimant testified that he trained horses only for the respondent but the ALJ determined that his testimony was not credible. The ALJ specifically found that the claimant did not train horses exclusively for the respondents. The claimant raced only horses belonging to the respondents during the summer of 2004 at Arapahoe Park. But the claimant was free to race horses for other owners. On August 9, 2004, the claimant was injured while racing a horse and was paid for racing by Arapahoe Park. The claimant was not performing a service for pay for respondent at the time of the injury. Therefore, the ALJ concluded that the clamant was not an employee of respondent at the time of the injury under § 8-40-202(2)(a), C.R.S. 2007. Further the ALJ found that the claimant was performing services for more than one horse owner during the summer of 2004 at Arapahoe Park and
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therefore was not an employee pursuant to § 8-40-301(8), C.R.S. 2007. The ALJ denied and dismissed the claim.
The petition to review contains only general allegations of error, derived from § 8-43-301(8), C.R.S. 2007. Moreover, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986). However, we have reviewed the record and we perceive no basis on which to set aside the ALJ’s order.
Under § 8-43-301(8), C.R.S. 2007 we are precluded from disturbing the ALJ’s order unless the findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the factual findings, the order is not supported by the findings, or the order is not supported by applicable law.
Where the claimant’s entitlement to benefits is disputed, the claimant has the burden to prove the necessary elements to establish the compensability of the injury for which benefits or compensation is sought. Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337
(Colo.App. 1997). Whether the claimant sustained his burden of proof is a factual question for resolution by the ALJ. City of Durango v. Dunagan, 939 P.2d 496 (Colo.App. 1997). The ALJ’s factual determinations must be upheld if supported by substantial evidence and plausible inferences drawn from the record. We have no authority to substitute our judgment for that of the ALJ concerning the credibility of witnesses and we may not reweigh the evidence on appeal. Id.; Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
Section 8-40-301(8), C.R.S. 2007 excludes a person who performs duties for more than one employer in the business of horse racing from the definition of “employee” for the purposes of the Workers’ Compensation Act of Colorado. The ALJ found, with record support, that the claimant was performing services for more than one horse owner during the summer of 2004 at Arapahoe Park and therefore was not an “employee” pursuant to § 8-40-301(8). Tr. at 94, 122-23. In our view, the ALJ correctly applied the law and did not err in denying benefits. Accordingly, we perceive no basis on which to disturb the ALJ’s order.
The ALJ also concluded that the clamant was not an employee of respondent at the time of the injury under § 8-40-202(2(a), C.R.S. 2007. Because we conclude that the ALJ did not err in dismissing the claim under § 8-40-301(8) it is unnecessary for us to address the additional reason cited by the ALJ for dismissal.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 17, 2007 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
_______________________ Curt Kriksciun
_______________________ Thomas Schrant
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RUSSELL A DANIELS, 4350 W LAKE AVE, APT. 208B, GLENVIEW, IL, 60026 (Claimant) M C STRICKLAND, JR., Attn: MARCUS STRICKLAND, JR.,, FL, (Employer).
CHRIS FORSYTH LAW OFFICE, LLC, Attn: CHRIS FORSYTH, ESQ., DENVER, CO, ((For Claimant).
RITSEMA LYON, P.C., Attn: DOUGLAS STRATTON, ESQ., FT. COLLINS, CO, (For Respondents).
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