W.C. No. 4-575-098.Industrial Claim Appeals Office.
September 20, 2004.
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Klein (ALJ) which dismissed the claim for workers’ compensation benefits. We affirm.
The claimant alleged that he was injured when he fell from a ladder. The respondent filed a motion for summary judgment alleging that the fall occurred while the claimant was performing work on and around the respondent’s home. The motion was supported by the respondent’s affidavit stating that the home is a “qualified residence” as the term is defined in § 8-41-402(1), C.R.S. 2003, and that the claimant was not otherwise employed by the respondent. The claimant failed to respond to this motion.
The ALJ dismissed the claim finding that § 8-41-402(1) is dispositive. In support, the ALJ noted there were no material issues of fact in dispute.
The claimant filed a petition to review arguing that he considered himself a full-time employee of the respondent performing painting and landscaping. The claimant further states that he “discussed” becoming an employee of the respondent’s “telecommunications business.”
The claimant alleged no facts at the time the motion for summary judgment was filed, nor does he now allege the existence of any facts which would exempt him from the operation of the homeowner’s exception contained in § 8-41-402(1). See Organ v. Jorgensen, 888 P.2d 336 (Colo.App. 1994). Consequently, the ALJ’s disposition of the case without a hearing was proper and the order must be upheld. See Provo v. Industrial Claim Appeals Office, 66 P.3d 138 (Colo.App. 2002) (summary dismissal is appropriate if record demonstrates there are no issues of material fact), aff’d. in part and rev’d. in part on other issues, 81 P.3d 1053 (Colo. 2003).
IT IS THEREFORE ORDERED that the ALJ’s order dated May 18, 2004, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ David Cain
______________________________ Kathy E. Dean
Kevin Patrick McCaffrey, Fort Collins, CO, Kevin Patrick McCaffrey, Fort Collins, CO, Max Eidswick, Fort Collins, CO, Craig Stirn, Esq., Fort Collins, CO, (For Respondent).