W.C. No. 4-384-408Industrial Claim Appeals Office.
May 3, 1999.
ORDER OF REMAND
The respondent seeks review of an order of Administrative Law Judge Martinez (ALJ) dated November 23, 1998, which determined the claimant suffered a compensable injury, and awarded workers’ compensation benefits. We set aside the order and remand for entry of a new order.
The ALJ found that the claimant was continuously employed by the respondent for approximately 9 years, and that until November 1997, the claimant performed maintenance and housekeeping at the respondent’s ski lodge and two rental apartments. In November 1997, the lodge was sold, but the claimant continued to perform services in connection with the rental apartments. In early 1998, the claimant packed the employer’s household goods in preparation for his relocation to Georgia. The ALJ found that “for all the foregoing work, the claimant was typically paid $100.00 per day.” In March 1998, the respondent hired the claimant and her husband to drive two rental trucks loaded with the respondent’s household goods from Colorado to Georgia, and to unload the trucks at the respondent’s new home. The assignment began March 29, 1998, and continued for 10 days. At the end of the move, the respondent gave the claimant $1200.
The claimant was injured on April 4, 1998, while unloading the respondent’s household goods in Georgia. The respondent was uninsured for workers’ compensation at the time of the injury. The claimant’s condition subsequently worsened and she became temporarily totally disabled commencing April 8, 1998. The ALJ determined the claimant suffered a compensable injury arising out of and in the course of her employment for the respondent, and rejected the respondent’s contention that the claimant was a “casual” employee.
I.
The respondent contends the ALJ lacked subject matter jurisdiction over the claim because the injury occurred in Georgia and the contract of hire, if any, was created in Georgia. We disagree.
The claimant contends this argument was not raised before the ALJ and thus, she argues that it should not be considered for the first time on appeal. However, jurisdictional challenges may be raised at any point in the proceeding. See Industrial Commission v. Plains Utility Co., 127 Colo. 506, 259 P.2d 282 (1953) Hasbrouck v. Industrial Commission, 685 P.2d 780 (Colo.App. 1984).
Section 8-41-204, C.R.S. 1998, provides coverage for injuries occurring outside Colorado if the claimant was hired or is regularly employed in Colorado, and the injury occurred within six months of leaving Colorado. Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d 861 (Colo.App. 1996). A contract of hire is created where the offer of employment is accepted or where the “last act necessary to a meeting of the minds or complete the contract is performed.” Moorhead Machinery Boiler Co. v. Del Valle, 934 P.2d at 864.
It is undisputed that the injury occurred within 10 days of the date the claimant left Colorado. Further, the claimant and the respondent were in Colorado when the claimant accepted the moving job, and when the claimant began driving the moving truck for the respondent. This is a sufficient basis on which to find that there was a “meeting of the minds” in Colorado. Therefore, the ALJ did not err in exercising jurisdiction over the claim and we need not consider whether the ALJ erred in finding that the claimant was “regularly employed” in Colorado.
II.
The respondent also contends the claimant is barred from receiving workers’ compensation benefits because she was uninsured independent contractor at the time of the injury. However, this issue is in the nature of an affirmative defense. See Stampados v. Colorado D S Enterprises, Inc., 833 P.2d 815 (1992); Frank C. Klein v. Colorado Compensation Insurance Authority, 859 P.2d 323
(Colo.App. 1993). As such, the defense is waived if not timely raised. See Johnson v. Industrial Commission, 761 P.2d 1140
(Colo. 1988).
Here, the assertion was not raised before the ALJ. (Tr. p. 5; Respondent’s Position Statement dated October 19, 1998). To the contrary, the argument was raised for the first time in the respondent’s brief in support of the petition to review. Therefore, the argument shall not be considered on appeal Colorado Compensation Ins. Authority v. Industrial Claim Appeals Office, 884 P.2d 1131 (Colo.App. 1994).
III.
The respondent also contends the claimant is barred from receiving workers’ compensation benefits because she was a volunteer, not an employee at the time of the injury. Again, we disagree.
Under § 8-40-202(2)(a), C.R.S. 1998, a person who performs services for pay for another is deemed to be an “employee,” unless such individual is free from control and direction both under a contract for performance and in fact. The claimant testified that she and her husband accepted the moving job in reliance on the statement by the respondent’s wife that the respondent “would make it worth our while.” (Tr. pp. 18, 41, 44). The claimant also stated that she expected the moving job would pay at least as much as she had been paid during her prior employment with the respondent. (Tr. p. 45).
The respondent admitted that he did not expect the claimant to assist in the move for free, and acknowledged that he paid her for the moving trip. (Tr. pp. 65, 67). Under these circumstances, the ALJ reasonably inferred that the claimant was performing a service for pay and thus, was an “employee” rather than a volunteer at the time of the injury. See Aspen Highlands Skiing Corp. v. Apostolou, 866 P.2d 1384 (Colo. 1994).
IV.
Further, the respondent contends the ALJ erred in finding that he was an “employer” as defined in § 8-40-203 and 8-40-302(4). The claimant contends that this argument was not previously raised. However, the issue of “compensability” was endorsed for adjudication, and § 8-41-301(1)(a), C.R.S. 1998, requires the claimant prove that “both employer and employee” are subject to the Workers’ Compensation Act (Act) to establish a compensable injury. Thus, we consider the respondent’s argument implicit in the adjudication of the issue of “compensability.”
Section 8-40-203(1)(b), C.R.S. 1998, provides that the term “employer” refers to a person “who has one or more persons engaged in the same business or employment” under a contract of hire. Further, even if a respondent meets the definition of an “employer” under § 8-40-203(1)(b), § 8-40-302(4), C.R.S. 1998, provides an exemption. Specifically, § 8-40-302(4) provides that employers of persons who work less than full-time doing “domestic work or maintenance, repair, remodeling, yard, lawn, tree or shrub planting or trimming, or similar work about the private home of the employer” are exempt if the employer has no other employees subject to the Act and such employments are “not within the course of the trade, business, or profession of said employers.”
The ALJ made no findings of fact concerning whether at the time of the injury, the respondent was an “employer” under §8-40-203(1)(b), or whether the respondent is exempt from the definition of employer under § 8-40-302(4). Therefore, the ALJ’s findings of fact are insufficient to determine whether the ALJ erred in finding that the claimant suffered a compensable injury.
Furthermore, § 8-4-202(1)(b), C.R.S. 1998, provides that the term “employee” does not include individuals whose “employment is but casual and not in the usual course of the trade, business, profession, or occupation of the employer.” Casual employment is characterized as employment which is occasional, incidental, temporary, emergent or haphazard. Heckman v. Warren, 238 P.2d 854
(1951); Lackey v. Industrial Commission, 249 P. 662 (1926). An employment is casual when it is not regular, periodic or certain in nature. Heckman v. Warren 238 P.2d at 860.
Here, the claimant testified that she worked for the claimant “off and on” throughout the year. (Tr. p. 10). Under these circumstances, the ALJ’s finding that the claimant was “continuously” employed by the respondent for approximately nine years, is insufficient for us to ascertain the basis for the ALJ’s finding that the claimant was not a “casual” employee. Furthermore, we note that the claimant was injured after the respondent had sold the business in which the claimant performed the majority of her work. It is unclear whether the ALJ found that the claimant had one continuing employment with the respondent which was not casual, or two separate employments, neither of which was casual. Therefore, the ALJ’s findings are insufficient to resolve the respondent’s further assertion that the ALJ erred in finding the claimant was not a “casual employee” at the time of the injury.
On remand, the ALJ must determine whether the respondent is an “employer” as defined by § 8-40-203(1)(b) and if so, whether the respondent is exempt from the Act under § 8-40-302(4). In the event the ALJ resolves these issues in favor of the claimant, the ALJ shall also issue specific findings of fact in support of his determination that the claimant was not a “casual”employee at the time of the injury, and shall also make additional findings concerning the claimant’s average weekly wage.
In this latter regard, we conclude that the record does not support the ALJ’s finding that the claimant was paid on a weekly basis. Moreover, the respondent argues that the ALJ erred in basing the claimant’s average weekly wage solely on her earnings in the final assignment. Rather, the respondent asserts, in effect, that the ALJ should have exercised his discretion to factor in the claimant’s earnings over a greater period of her employment. On remand, the ALJ shall make specific findings concerning the manner in which he has computed the average weekly wage, and his rationale for the method used. See § 8-42-102(3), C.R.S. 1998.
Our remand should not be understood as expressing any opinion concerning the resolution of these issues. Moreover, in view of the remand, we decline to address the respondent’s remaining arguments at this time.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 23, 1998, is set aside and the matter remanded to the ALJ for entry of a new order as indicated above.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
Copies of this decision were mailed May 3, 1999 to the following parties:
Victoria L. Roop, P.O. Box 1137, Paonia, CO 81428
Gus F. Hallum, 608 Old Plantation Rd., Jekyll Island, GA 31527
Christopher Seidman, Esq., P.O. Box 3207, Grand Junction, CO 81502 (For Claimant)
Floyd M. Youngblood, Esq., 4465 Kipling, #102, Wheat Ridge, CO 80033 (For Respondent)
BY: AP