W.C. No. 4-207-613Industrial Claim Appeals Office.
July 27, 1995
FINAL ORDER
The non-insured employer (Roberts) seeks review of a final order of Administrative Law Judge Hopf (ALJ), which determined that the claimant was Roberts’ employee, determined the claimant’s average weekly wage, and assessed a penalty for failure timely to admit or deny liability. We affirm.
The ALJ found that, in October 1993, Roberts contracted with a homeowner to remodel a residence. Roberts then contracted with the claimant to perform some of the remodeling work.
Under the agreement between Roberts and the claimant, the work was to be “completed in phases.” Prior to each phase, Roberts would tell the claimant the price “he needed” in order to complete the work. Conversely, the claimant told Roberts that he would require “a minimum of $13 per hour to do the work.” The claimant performed under this arrangement until he was injured in December 1993.
The ALJ found that, from October through December 1993, the claimant performed work exclusively for Roberts. The ALJ also found that the claimant was not a “licensed contractor” and worked under the “control and direction of Roberts” during the relevant period.
The ALJ also found that after the claimant was injured Roberts attempted to have the claimant put on the payroll of respondent Front Range Job Services (Front Range). Front Range, a temporary services agency, agreed to place the claimant on its payroll retroactively if the claimant completed the necessary paperwork and if the claimant “had not been injured” previously.
Front Range actually prepared a check for the claimant, and Roberts sent the claimant to pick it up. However, when the claimant went to Front Range on December 31, 1993, and learned of the arrangement between Roberts and Front Range, the claimant declined to become an employee of Front Range. Consequently, the claimant never completed the necessary paperwork and Front Range voided the check.
The ALJ also found that Roberts was advised of the claimant’s injury when it occurred on December 22, 1993. The claimant’s wife spoke with Roberts later in the week and inquired about insurance coverage for the claimant’s injury. Nevertheless, Roberts did not admit or deny liability until May 11, 1994.
Under these circumstances, the ALJ concluded that the claimant was an employee of Roberts, and not an independent contractor, under the provisions of § 8-40-202(2), C.R.S. (1994 Cum. Supp.). Further, the ALJ rejected the argument that the claimant was an employee of Front Range because there was never any contractual relationship between the claimant and Front Range. The ALJ also determined that the claimant’s average weekly wage was $325 per week, and assessed a penalty for Roberts failure timely to admit or deny liability.
I.
On review, Roberts first contends that the ALJ erred in determining that the claimant was his employee rather than an independent contractor. In support of this proposition, Roberts cites evidence that the claimant was paid on a “per-task basis” rather than by the hour, and was only paid when the contracted work was complete. Roberts also relies on the fact that the claimant performed work as an independent remodeling contractor both before and after the injury. We are not persuaded.
The pertinent provisions of § 8-40-202(2)(a), C.R.S. (1994 Cum. Supp.) provide as follows:
“Notwithstanding any other provision of this section, any individual who performs services for another shall be deemed to be an employee, irrespective of whether the common-law relationship of master and servant exists, unless such individual is free from control and direction in the performance of the service, both under the contract for performance of service and in fact and such individual is customarily engaged in an independent trade, occupation, profession or business related to the service performed.”
Section 8-41-401(3), C.R.S. (1994 Cum. Supp.), provides that an individual “excluded” from the definition of an “employee” under § 8-40-202(2), who does not have workers’ compensation coverage, does not have any cause of action for workers’ compensation benefits.
Section 8-40-202(2), and the cited portion of § 8-41-401(3), were enacted as part of the 1993 amendments to the Workers’ Compensation Act (Act). 1993 Colo. Sess. Laws, ch. 103 at 355-358. At the time these amendments were adopted, the General Assembly altered the “Legislative Declaration” of the Act by the addition of § 8-40-102(2), C.R.S. (1994 Cum Supp.). The amended portion of the Legislative Declaration is as follows:
“It is the intent of the general assembly that when determining whether an individual is an employee only the factors specified in section 8-40-202(2) and any case law which has construed the provisions of section 8-70-115 are to be considered. It is further the intent of the general assembly that the provisions set forth in section 8-40-202(2) supersede the common law.”
Section 8-70-115(1)(b), C.R.S. (1994 Cum. Supp.), is a provision of the Colorado Employment Security Act which defines “employment” for purposes of unemployment insurance compensation. The language of §8-70-115(1)(b) parallels the language of § 8-40-202(2)(a).
Thus, in considering the argument of Roberts, it is appropriate for us to consider unemployment insurance case law interpreting § 8-70-115. Further, it is appropriate to consider the “factors” enumerated in §8-40-202(2)(b)(II)(A)-(I), C.R.S. (1994 Cum. Supp.). Moreover, case law interpreting the Employment Security Act has held that workers’ compensation case law discussing the “right to control test” is relevant in interpreting § 8-70-115. See Carpet Exchange v. Industrial Claim Appeals Office, 859 P.2d 278 (Colo.App. 1993). Thus, we may also consider workers’ compensation cases.
Ultimately, the question of whether the claimant was free from direction and control in the performance of the remodeling services, and whether the claimant was customarily engaged in an independent business, are questions of fact for resolution by the ALJ. See Locke v. Longacre, 772 P.2d 685 (Colo.App. 1989); Weld County Kirby Co. v. Industrial Commission, 676 P.2d 1253 (Colo.App. 1983). Thus, we must uphold the ALJ’s determinations if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1994 Cum. Supp.).
Ultimately, freedom from “control and direction” means freedom “over the means and methods of the work.” Carpet Exchange v. Industrial Claim Appeals Office, supra. 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 of 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).
Here, the record contains evidence that the claimant was hired to work on multiple phases of the job, and Roberts himself admitted that he worked “together” with the claimant in completing the work. (Tr. pp. 17-80). Further, there was evidence that Roberts intended to employ the claimant as a supervisor after the remodeling project was done. (Tr. p. 42). Under these circumstances, there is substantial evidence in the record to support the ALJ’s conclusion that Roberts had overall control of the claimant’s work, and that the hiring was “general” in nature.
Moreover, we are not convinced that the payment plan established by Roberts and the claimant represents a true “per-task hiring.” Rather, as the ALJ found, it appears that the overall contract price for any “phase” of the work was designed to pay the claimant the equivalent of $13 per hour. In any event, we do not think the payment arrangement is particularly critical in this case because the evidence indicates that the claimant did not perform work for any other employer between October and December 1993. See Stampados v. Colorado D S Enterprises, Inc., 833 P.2d 815 (Colo.App. 1992) (evidence that claimant worked full time for a single employer was “compelling circumstance” supporting the existence of employment relationship).
In any event, the evidence supports the ALJ’s determination that the claimant was not customarily engaged in an independent business. As the ALJ found, the claimant was not a licensed contractor, and did not appear to be holding himself out as a separate business entity at the time of the injury. Rather, the claimant was performing work exclusively for Roberts. Thus, the evidence supports the ALJ’s legal determination. Carpet Exchange v. Industrial Claim Appeals Office, supra, (to be customarily engaged in an independent business the worker must actually and customarily provide similar services to others at the time he or she works for the employer); §8-40-202(b)(II)(I)(“service provider” must maintain entirely separate business operation from putative employer).
It is true that some evidence is the record might support contrary findings and conclusions. However, we are not free to substitute our judgment for that of the ALJ concerning the weight and credibility of the evidence on these factual issues. Martinez v. Regional Transportation District, 832 P.2d 1060 (Colo.App. 1992).
II.
Roberts next contends that the ALJ erred in finding that the claimant was not an employee of Front Range at the time of the injury. In support of this argument, Roberts relies on the evidence indicating that Front Range placed the claimant on its payroll for the week during which the injury occurred and sent an invoice to Roberts. We reject this argument.
Section 8-40-202(1)(b), C.R.S. (1994 Cum. Supp.) defines an employee as a “person in the service of any person, . . . under any contract of hire express or implied.” A contract of hire, like any other contract, contemplates “competent parties, subject matter, a legal consideration, mutuality of agreement, and mutuality of obligation.” Aspen Highlands Skiing Corp. v. Apostolou, 866 P.2d 1384 (Colo. 1994).
Here, the ALJ found that the claimant had no relationship whatsoever with Front Range, let alone an employment contract, at the time the injury occurred. This finding is amply supported by the claimant’s testimony that he had not heard of Front Range until after the injury, and that he never agreed to be an employee of Front Range. This evidence, which the ALJ credited, establishes that there was no “mutuality of agreement” or “mutuality of obligation” between the claimant and Front Range at the time of the injury.
Moreover, the evidence relied upon by Roberts does not compel the conclusion that there was any contractual relationship between the claimant and Front Range. Rather, this evidence is consistent with the ALJ’s implicit conclusion that Roberts attempted to avoid liability for the claimant’s injury by giving the false impression that the claimant was an employee of Front Range. The ALJ explicitly stated that Roberts’ testimony was “not credible” and that his version of what occurred was “not persuasive.”
III.
Roberts next contends that the ALJ erred in determining that the claimant’s average weekly wage was $325 per week. He argues that, because the claimant testified that he was paid $700 for two months work, his average weekly wage should be computed as $90 per week under §8-42-102(1)(e), C.R.S. (1994 Cum. Supp.). We disagree.
The ALJ has wide discretion, under § 8-42-102(3), C.R.S. (1994 Cum. Supp.), to calculate the claimant’s average weekly wage when none of the enumerated methods will yield a fair result. Consequently, we must uphold the ALJ’s determination of the claimant’s average weekly wage unless it constitutes an abuse of discretion. Coates, Reid Waldron v. Vigil, 856 P.2d 850 (Colo. 1993). No such abuse exists here.
The claimant testified that from October to December he worked between four and six hours per day, and that his pay rate was between $13 and $15 per hour. (Tr. pp. 9, 18). Thus, as the claimant argues, the ALJ could logically find that the claimant worked twenty-five hours per week at $13 per hour. This yields a wage of $325 per week.
It is true, as Roberts argues, that the claimant testified that he was paid “about $700” for the work performed during the two month period. However, the claimant also testified that this did not represent the entire amount of money which he was owed by Roberts. (Tr. pp. 28, 38, 40, 42). Thus, the ALJ was not compelled to reach the result for which Roberts argues.
IV.
Roberts next argues that the ALJ erred in failing to impose a penalty on the claimant for failure timely to report the injury in writing. Roberts also asserts that the claimant’s failure to provide written notice of the injury precludes imposition of the penalty for failure timely to admit or deny liability. We reject these arguments.
Section 8-43-102(1)(a), C.R.S. (1994 Cum. Supp.), creates a discretionary penalty based on the claimant’s failure to provide the employer with written notice of an injury. However, in our view, Roberts never raised this issue and it is not properly before us on appeal.
We have reviewed the Response to Application for Hearing filed by Roberts, and his bench memorandum filed at the time of the hearing. Further, we have examined the ALJ’s discussion with counsel concerning the issues to be considered at the time of the hearing. Nowhere does counsel for Roberts indicate his intention to raise the issue of a penalty based on the claimant’s failure to report. Consequently, this issue has been waived and we need not consider it on review. See Pacheco v. Roaring Fork Aggregates, 897 P.2d 872 (Colo.App. 1995); Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986).
Roberts also argues that the claimant’s failure to give written notice under § 8-43-102(1)(a) precluded the ALJ’s imposition of a penalty for failure timely to admit or deny liability under § 8-43-203(1), C.R.S. (1994 Cum. Supp.). However, § 8-43-203(1) does not require the claimant to provide written notice in order to trigger a respondent’s responsibility to admit or deny. Rather, § 8-43-203(1) provides that an employer’s obligation is triggered upon “notice or knowledge” of a disabling injury. (Emphasis added.)
Moreover, verbal notice of an injury has been held sufficient to trigger § 8-42-203 [8-43-203](1). All that is necessary is that the employer receive “some knowledge of accompanying facts connecting the injury or illness with the employer, and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim.” Jones v. Adolph Coors Co., 689 P.2d 681
(Colo.App. 1984). Verbal notice is sufficient to provide the employer with the requisite knowledge. Jones v. Adolph Coors Co., supra.
Here, the ALJ found that Roberts received verbal notice of the claimant’s injury, as well as its disabling effects. Because this finding is supported by substantial evidence, it supports the ALJ’s imposition of a penalty under § 8-43-203, regardless of the claimant’s alleged failure to give written notice.
IT IS THEREFORE ORDERED that the ALJ’s order, dated September 19, 1994, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Bill Whitacre
NOTICE
This Order is final unless an action to modify or vacate the Order iscommenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver,Colorado 80203, by filing a petition to review with the court, withservice of a copy of the petition upon the Industrial Claim Appeals Officeand all other parties, within twenty (20) days after the date the Orderwas mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum.Supp.).
Copies of this decision were mailed July 27, 1995 to the following parties:
Bob L. Franklin, 3825 S. Pitkin Cir., Aurora, CO 80013
The Kent Group, Inc. d/b/a Front Range Job Services, 19-C E. Powers Ave., Littleton, CO 80121
Dave Roberts, % Larry G. Johnson, Esq., 1675 Broadway, Ste. 2100, Denver, CO 80202
Colorado Compensation Insurance Authority, Attn: P. Tochtrop, Esq. (Interagency Mail)
Roger Fraley, Jr., Esq., 3113 E. Third Ave., Ste. 200, Denver, CO 80206 (For the Claimant)
Larry G. Johnson, Esq., 1675 Broadway, Ste. 2100, Denver, CO 80202 (For the Roberts)
By: ________________________