W.C. No. 4-209-319Industrial Claim Appeals Office.
January 11, 1996
FINAL ORDER
The respondents filed a Petition to Review a final order of Administrative Law Judge Rumler (ALJ) which determined that Traffic Control West, Inc. (Traffic West) was the claimant’s employer at the time the claimant suffered a work-related injury, and therefore, concluded that Traffic West is liable for the claimant’s workers’ compensation benefits. We affirm.
The claimant is a police officer whose primary employment is with the City and County of Denver Police Department (DPD). On November 16, 1993, the claimant injured his right knee while directing traffic at a location where Traffic West was hired to provide traffic control services.
On appeal, the respondents renew their contention that the claimant was a “loaned employee” from the DPD, and therefore argue that the DPD is liable for the claimant’s injury. Alternatively, the respondents argue that the claimant was an independent contractor. We reject these arguments.
A “loaned employee” is an employee loaned or hired out to another employer for some specific service or particular transaction and under the exclusive control of that special employer. Morphew v. Ridge Crane Service, Inc., 902 P.2d 848 (Colo.App. 1995). Section 8-41-303
C.R.S. (1995 Cum. Supp.) provides that the “loaning employer” is liable for the employee’s work-related injury unless:
“said loaning constitutes a new contract of hire, express or implied, between the employee whose services were loaned and the person to whom the employee was loaned.” (Emphasis added).
The essential elements of a contract of hire are competent parties, subject matter, legal consideration, mutuality of agreement, and mutuality of obligation. Aspen Highlands Skiing Corp. v. Apostolou, 866 P.2d 1384
(1994); Denver Truck Exchange v. Perryman, 134 Colo. 586, 307 P.2d 805
(1957). In particular, there must be the expectation of remuneration for the services performed. Rocky Mountain Dairy Products v. Pease, 161 Colo. 216, 422 P.2d 630 (1966).
Here, the respondents contend that there was no “mutuality of agreement” between the claimant and Traffic West that Traffic West was the claimant’s employer. In support, the respondents cite the testimony of Traffic West’s supervisor, Yvette Halverson, that the law required Traffic West to use uniformed police officers to perform traffic control functions, and that all police officers were hired through officer Smolka at the DPD. Ms. Halverson also stated that if problems developed with an officer, the problems had to be resolved through officer Smolka, and thus, Traffic West had no actual control over the claimant.
The existence of a contract of hire is a factual issue for resolution by the ALJ. Tuttle v. ANR Freight System, Inc., 797 P.2d 825 (Colo.App. 1990). Therefore, we must uphold the ALJ’s determination is supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); Aspen Highlands Skiing Corp. v. Apostolou, supra.
The ALJ explicitly determined that there was a separate contract of hire between the claimant and Traffic West. In so doing, the ALJ expressly acknowledged Ms. Halverson’s testimony concerning her difficulty controlling the police officers. However, the ALJ also found that the claimant engaged in the off duty work for Traffic West pursuant to written approval from the DPD and Traffic West accepted the terms of that approval concerning its role as the claimant’s employer, that claimant was paid by Traffic West for all services performed for Traffic West, and that Traffic West did not alter its employer/employee relationship with the claimant even though it increased the claimant’s rate of pay to avoid income tax withholding. The ALJ also found that Traffic West had the right
to fire the claimant without further liability.
The ALJ’s finding of a mutuality of agreement between the claimant and Traffic West that Traffic West was the claimant’s employer is supported by substantial evidence and the ALJ’s plausible inferences from conflicts in the evidence. (Tr. September 24, 1994, pp. 12, 19, 20, 33, 52, 57, 79, 80); compare Gray v. Staffing, Inc., W.C. No. 4-186-729, August 5, 1994 (no mutuality of agreement between claimant and respondent-employer where claimant stated he was the employee of a third party). Therefore, we must disregard the existence of evidence in the record, which if credited, might support a contrary result. See F.R. Orr Construction v. Rinta, 717 P.2d 965
(Colo.App. 1985).
Moreover, the ALJ’s finding of a separate contract for hire between the claimant and Traffic West defeats an argument that DPD is liable for the claimant’s injury as the “loaning employer” under § 8-41-303. Therefore, even if we were to accept the respondents’ contention that the DPD was a “loaning employer,” the result remains unchanged, and the respondents remaining arguments on this issue do not alter our conclusion.
Next, we reject the respondents’ argument that the ALJ erroneously failed to find that the claimant was working an “independent contractor” at the time of the injury. As correctly stated by the respondents, §8-40-202(2)(a), C.R.S. (1995 Cum. Supp.), provides that the claimant was Traffic West’s “employee” and not an independent contractor, unless the claimant was “free from control and direction in the performance of the service” and the claimant was “customarily engaged in an independent trade, occupation, profession, or business related to the service performed.” The respondents also correctly state that freedom from control and direction means freedom “over the means and methods of the work.” See Carpet Exchange v. Industrial Claim Appeals Office, 859 P.2d 278 (Colo.App. 1993) Factors relevant to determining the existence of control and direction include whether the worker gives all or part of his time to the work, whether the worker has control over the details of the work, whether compensation is by time or piece as opposed to a lump sum payment for a given task and whether the employment is general as opposed to one for the completion of a given task. Brush Hay and Milling Co. v. Small, 154 Colo. 11, 388 P.2d 84 (1963).
The respondents do not dispute Ms. Halverson’s testimony that she determined when the claimant was to report to work, where the claimant would be stationed, when the claimant would take a lunch break, and what direction the claimant was to divert the traffic. However, the respondents contend that this control had nothing to do with the means and methods of accomplishing the work. In contrast, the respondents cite the claimant’s testimony that he alone determined how to operate the traffic control lights to divert the traffic in the direction requested by Ms. Halverson.
It is not uncommon for a worker to possess certain technical expertise, which the employer does not possess concerning the work to be performed. Further, evidence that the claimant retained some control over the technical performance of his service does not compel a conclusion that the claimant was free from direction and control.
Here, there was conflicting evidence concerning the nature and extent of Traffic West’s right to direct and control the means and method of the claimant’s work. However, because the issue was a question of fact, it was the ALJ’s sole prerogative to resolve the conflicts against the respondents and credit the evidence that Traffic West had a sufficient right to control the claimant’s work to bring the claimant within the definition of an “employee.” We have no authority to substitute our judgment for that of the ALJ concerning the sufficiency and weight of the evidence she found persuasive. Martinez v. Regional Transportation District, 832 P.2d 1060
(Colo.App. 1992). Therefore, it is immaterial on review that the evidence might have been interpreted differently.
We have also previously stated that the factors set forth in §8-40-202(2)(b)(II), C.R.S. (1995 Cum. Supp.) are dispositive where the parties seek to demonstrate the claimant’s “independence” solely by a written agreement, and are relevant to whether the respondents met their burden to prove independence under § 8-40-202(2)(a). King v. Drywall Connection, Inc., W.C. No. 4-216-758, May 5, 1995; Caldwell v. Canyon Marine, Inc., W.C. No. 4-216-968, July 18, 1995. We adhere to our previously stated position in this matter. Therefore, we conclude that the ALJ did not err in considering the factors listed in § 8-40-202(2)(b)(II) in finding that the respondents failed to prove that the claimant was an independent contractor at the time of the injury.
Moreover, § 8-40-202(2) requires the respondents to prove that the claimant be free from control and engaged in an independent trade or profession to establish the claimant’s status as an independent contractor. Therefore, regardless of whether the claimant was engaged in an independent profession, the ALJ’s findings support her determination that the claimant was Traffic West’s employee. Consequently, we do not consider the respondents’ contention that the claimant was engaged in an independent trade or profession.
Lastly, we reject the claimant’s argument that the respondents’ Petition to Review is moot because the respondents filed an admission of liability prior to filing their Petition to Review. To the contrary, the respondents’ filing of the admission of liability was consistent with the requirements of § 8-43-301(13), C.R.S. (1995 Cum. Supp.).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 12, 1994, 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 iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO80203, by filing a petition for review with the court, with service of acopy of the petition upon the Industrial Claim Appeals Office and allother parties, within twenty (20) days after the date this Order ismailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed January 11, 1996 to the following parties:
Joe Dojlidko, 6236 W. Floyd Ave., Denver, CO 80227
Traffic Control West, Attn: Bernadette Castillo, 1301 Caprice Dr., Castle Rock, CO 80104
Liberty Mutual Insurance Company, Attn: Margaret Malone, 13111 E. Briarwood Ave., #100, Englewood, CO 80112
Kenneth M. Platt, Esq. and Laurence J. Free, Esq., 1199 Bannock St., Denver, CO 80204 (For Claimant)
Jonathan S. Robbins, Esq., 1120 Lincoln St., #1606, Denver, CO 80203 (For Respondents)
BY: _______________________