W.C. No. 4-384-408.Industrial Claim Appeals Office.
November 9, 1999.
FINAL ORDER.
The respondent seeks review of an order of Administrative Law Judge Martinez (ALJ) which was issued pursuant to our Order of Remand dated May 3, 1999. The respondent contends the ALJ erred in finding the claimant suffered a compensable injury, and calculating average weekly wage. We affirm.
The ALJ found 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. From January through March 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 moving 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. In an order dated November 23, 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. Therefore, the ALJ ordered the respondent to pay temporary disability and medical benefits. The respondent appealed.
We concluded the ALJ’s findings of fact were insufficient to permit appellate review of the respondent’s contentions that at the time of the injury, he was not the claimant’s “employer,” and the claimant was not an “employee” as defined by the Workers’ Compensation Act (Act). Therefore, we set aside the ALJ’s order and remanded the matter to the ALJ for entry of a new order. We specifically directed the ALJ to determine whether the respondent was an “employer” as defined by § 8-40-203(1)(b), C.R.S. 1999, whether the respondent is exempt from the definition of employer under § 8-40-302(4), C.R.S. 1999, and whether the employment was “causal” as defined by § 8-40-202(1)(b), and thus, not covered by the Act. Furthermore, we found that the record did not support the ALJ’s finding that the claimant was paid by the week, and we directed the ALJ to make specific findings of fact concerning the manner in which he computed the claimant’s average weekly wage.
On remand, the ALJ entered an order dated July 16, 1999. The ALJ found the respondent met the definition of “employer,” and that the claimant’s employment was not “casual.” The ALJ awarded medical benefits and temporary disability based on an average weekly wage of $840. The respondent timely appealed.
On review, the respondent reasserts his contention that the ALJ erred in finding that at the time of the injury, he was the claimant’s “employer.” We perceive no error.
Section 8-40-203(1)(b), 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, express or implied. The characterization of the employment relationship depends on the particular facts of the case and is a question of fact for resolution by the ALJ. Kalmon v. Industrial Commission, 583 P.2d 946 (Colo.App. 1978). Consequently, we must uphold the ALJ’s determinations if supported by substantial evidence in the record and plausible inferences drawn from the evidence. Section 8-43-301(8), C.R.S. 1999; Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998). Where the evidence is subject to conflicting inferences, it is the ALJ’s sole province to determine the inference to be drawn. Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
Further, the requirement in § 8-40-203(1)(b) of a “business or employment” exists in the disjunctive. Therefore, evidence the respondent did not own a “business” at the time of the injury, did not preclude the ALJ from finding that the respondent was an “employer” because he had one or more persons engaged in “employment.”
The ALJ found the claimant worked for the respondent year round for over 8 years under a contract of hire cleaning the respondent’s ski lodge. (Conclusions of Law 1). Although the ski lodge was sold, the ALJ found that the employment continued with changed job duties. The ALJ also found the respondent hired both the claimant and the claimant’s husband to transport and unload his belonging to his new residence. (Finding of Fact 2). These findings are supported by the record and support the ALJ’s implicit finding that the respondent had one or more persons engaged in the same employment under a contract of hire at the time of the injury.
Section § 8-40-302(4) provides that employers of persons who are regularly employed 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.” (Emphasis added).
Here, the ALJ found that loading a moving truck, driving 5 days cross country and unpacking the moving truck is not “domestic work” or “similar work” contemplated by § 8-40-302(4). The ALJ’s determination is a plausible interpretation of the record, and is buttressed by evidence that the respondent hired the claimant instead of a professional moving company, which he had done in the past. Consequently, the ALJ’s findings support the conclusion that the respondent does not fall within the exemption provided by § 8-40-302(4). Under these circumstances, we need not consider whether the ALJ erred in determining that, at the time of the injury, the claimant was “regularly” employed full-time. See §8-43-310, C.R.S. 1999; A R Concrete Construction v. Lightner, 759 P.2d 831 (Colo.App. 1988). (error which is not prejudicial will be disregarded).
Next, the respondent contends the claimant had 3 separate employments for the respondent, and that the last employment was casual and not regular. Therefore, the respondent contends the ALJ erred in finding the claimant’s employment was not casual. The respondent also contends the ALJ erred in failing to make any additional findings in support of his determination. Again, we disagree.
Section § 8-40-202(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.
Contrary to the respondent’s contention, the ALJ’s findings are sufficient to ascertain the basis for his determination that the claimant’s employment was not causal. The ALJ found the claimant spent 3 months packing the respondent’s belongings, 5 days transporting the belongings and 3 days unpacking the belongings at the respondent’s new home. The ALJ found that the latter activities required full days from the claimant for which she was paid $120 per day. (Conclusions of Law 3). In view of the length of the claimant’s employment with the respondent, the ALJ determined that the claimant’s employment could not be fairly characterized as “casual.”
The evidence could have been interpreted differently. However, the ALJ’s findings reflect a plausible interpretation of the evidence, and we may not substitute our judgment for that of the ALJ concerning the sufficiency and probative value of the evidence. Rockwell International v. Turnbull, 802 P.2d 1182
(Colo.App. 1990).
Furthermore, we reject the respondent’s contention that Kalmon v. Industrial Commission, supra, compels a contrary result. I Kalmon the claimant was hired to touch-up a painted mural. The claimant offered to do the work for $5 per hour or a total of $50 for 8 to 10 hours work. Under these circumstances, the Industrial Commission found the claimant’s employment was casual.
Here, unlike Kalmon, the claimant had an 8-year employment relationship with the respondent and worked for 3 months packing the respondent’s belongings before she was assigned to transport and unload the respondent’s belongings. Therefore, this claim is factually distinguishable from the circumstances presented i Kalmon.
Finally, the respondents contend the ALJ erroneously calculated the claimant’s average weekly wage. The respondent contends that the money he paid the claimant was in the nature of a gift. The respondent also contends it is inequitable to find that the claimant had one continuous employment with the respondent, and then calculate average weekly wage from the claimant’s earnings during the last 10 days of work. We perceive no basis for interfering with the ALJ’s determination.
Section 8-42-102(2), C.R.S. 1999, provides that average weekly wage shall be based on the remuneration the claimant received at the time of the injury. Where the claimant is paid on a per diem basis, the weekly wage is calculated by multiplying the daily wage by the number of days and fractions of days in the week during which the claimant was working under the contract of hire at the time of the injury. Section 8-42-102(2)(c). The overall purpose of the statutory scheme is to “arrive at a fair approximation of the claimant’s wage loss and diminished earning capacity” from the industrial injury. Campbell v. IBM Corp., 867 P.2d 77 (Colo.App. 1993). Furthermore, Campbell stands for the proposition that average weekly wage may be based on the claimant’s wage at the time of the disability.
Section 8-42-102(3), affords the ALJ wide discretion to calculate average weekly wage by such “manner” or by “such other method” as will fairly determine the claimant’s average weekly wage. However, we may not interfere with the ALJ’s failure to exercise his discretionary authority unless an abuse of discretion is shown. Coates, Reid Waldron v. Vigil, 856 P.2d 850
(Colo.App. 1993). The standard on review of an alleged abuse of discretion is whether the ALJ’s order “exceeds the bounds of reason,”such as where it is not supported by substantial evidence or is contrary to law. Rosenberg v. Board of Education of School District #1, 710 P.2d 1095 (Colo. 1985); Coates Reid Waldron v. Vigil, supra.
Here, the ALJ declined to exercise his discretion and calculated average weekly wage in accordance with § 8-42-102(c). In support, the ALJ found that the claimant’s rate of pay changed during her last period of employment with the respondent. The ALJ also implicitly determined that using the claimant’s higher wage during the last assignment produced a fair approximation of the claimant’s actual wage loss due to the temporary disability caused by the moving injury.
The record contains evidence that the claimant’s last assignment with the respondent demonstrated her ability to perform moving and packing duties. There is no evidence in the record that the amount paid by the respondent was more than the claimant could have earned performing similar services in the open labor market. Neither is there any evidence that the respondent could have hired a professional moving company for less than the amount he paid the claimant. Under these circumstances, we cannot say the ALJ abused his discretion in refusing to exercise his discretion and calculate the claimant’s average weekly wage based on her lower, part-time earnings prior to April 1998.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 16, 1999, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ Kathy E. Dean
________________________________ Dona Halsey
NOTICE This Order is final unless an action to modify or vacate thisOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, CO 80203, by filing a petition for review with thecourt, with service of a copy of the petition upon the IndustrialClaim Appeals Office and all other parties, within twenty (20)days after the date this Order is mailed, pursuant to section8-43-301(10) and 307, C.R.S. 1999.
Copies of this decision were mailed November 9, 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: A. Pendroy