W.C. No. 4-674-302.Industrial Claim Appeals Office.
June 26, 2008.
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FINAL ORDER
The claimant seeks review of a supplemental order of Administrative Law Judge Jones (ALJ) dated February 12, 2008, that denied and dismissed the claimant’s claim for benefits. We affirm.
The ALJ’s pertinent findings of fact are as follows. The claimant worked for the respondent as the project superintendent for residential construction. Separate from the claimant’s role as a residential project superintendent for the respondent the claimant, the claimant’s spouse and principals from the respondent formed West Point Commercial Park, LLC, which was not a party to this workers’ compensation claim. West Point Business Park was a commercial project involving the construction of an office building in Greeley. The claimant’s spouse is in the real estate business. On January 4, 2006, Rich Miner, who was one of the employer’s partners, called the claimant and asked if he would meet an inspector at West Point Business Park the next day. On the morning of January 5, 2006, work was being performed at West Point Business Park. Wild Wolf Construction was attaching trim to the exterior of a building. One of the workers for Wild Wolf Construction refused to climb a ladder to hold up a piece of trim. The claimant volunteered to climb the ladder. The claimant was injured when he fell off the ladder. Miner and the claimant had a business interest in the West Point Business Park project, outside of any employment relationship, and meeting the inspector furthered their mutual interest. There was no expectation of remuneration for the claimant to meet the inspector. There was no contract of hire involving the meeting with the inspector, as there was no mutuality of obligation between Miner and the claimant. The claimant was
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volunteering his services to help Wild Wolf Construction in completion of a task on a project for which the claimant was a partial owner.
The ALJ determined that even if the claimant was an employee of the respondent he was not acting in the course and scope of his employment at the time of the injury. The ALJ concluded that the claimant failed to sustain his burden of proof that he suffered a compensable claim under the Workers’ Compensation Act. Accordingly, she denied and dismissed the claim.
I.
On appeal the claimant contends that there was absolutely no evidence that he had any ownership interest in West Point Business Park, LLC as found by the ALJ. The claimant argues that, although he had invested in the project, he had no ownership interest. We are not persuaded by this argument.
Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. This standard of review requires us to consider the evidence in a light most favorable to the prevailing party, and defer to the ALJ’s credibility determinations, resolution of conflicts in the evidence, and plausible inferences drawn from the record. Wilson v. Industrial Claim Appeals Office, 81 P.3d 1117
(Colo.App. 2003).
Miner testified that West Point Business Park, LLC was a limited liability corporation that was put together by Steve White, Miner, the claimant and the claimant’s wife. Tr. at 60. The purpose of West Point Business Park, LLC was to develop the land, build a commercial building and sell it in hopes of making money. Tr. at 60. The claimant does not contend that the money he put into the West Point Business Park, LLC was a loan. The claimant, although now contending on appeal that he was solely an investor, testified that he was a “member” of the West Point Business Park, LLC. Tr. at 22. In our view his testimony and the remainder of the factual record supports the inference that he had an ownership interest in the entity.
II.
The claimant also contends that at the time of the accident he was not a volunteer for the respondent. The claimant argues that he was at the work site at the request of the respondent and in furtherance of that work he assisted one of the subcontractors who needed help. However, as we read the order, the ALJ found that the claimant was volunteering his services to assist Wild Wolf Construction in completing a task on a project of which the claimant was a partial owner and which was unrelated to the respondent employer here.
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To obtain compensation for an injury, an injured employee must at the time of the injury have been “performing service arising out of and in the course of the employee’s employment.” Section 8-41-301(1)(b), C.R.S. 2007. An injury “arises out of employment when it has its origin in an employee’s work-related functions and is sufficiently related thereto to be considered part of the employee’s service to the employer in connection with the contract of employment. Panera Bread, LLC v. Industrial Claim Appeals Office, 141 P.3d 970 (Colo.App. 2006). The “course of employment” requirement is satisfied when it is shown that the injury occurred within the time and place limits of the employment relation and during an activity that had some connection with the employee’s job-related functions. Popovich v. Irlando, 811 P.2d 379
(Colo. 1991).
Because the issues are factual in nature, they must be reviewed under the substantial evidence standard. Section 8-43-308, C.R.S. 2007. As noted above, the evidence must be considered in the light most favorable to the prevailing party, and we must defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. See Wilson v. Indus. Claim Appeals Office, supra.
Here the ALJ found and the claimant concedes that his pay was calculated according to his completion of particular projects, and he was generally paid $2,000 to $5,000 per house. The ALJ found that there was no expectation of remuneration for the claimant’s agreement to meet with the inspector. Nevertheless, the claimant argues that he also derived benefit from a truck, a business card, and cellular phone that the respondent had given him. However, in our opinion this does not compel the conclusion that there was any expectation of remuneration for the claimant’s appearance at the West Point Commercial Building site to meet with the inspector. It is true that the claimant was called by Miner and asked to go to the West Point Commercial Building to meet with an inspector. However, we are unpersuaded that the ALJ was compelled to find that this request came from Miner as a representative of the respondent employer, as opposed to his role as a co-owner with the claimant of West Point Business Park LLC. As we determined above, the ALJ found with record support that the claimant had an ownership interest in the West Point Business Park project. As we read the ALJ’s order, she found that the claimant’s agreement to meet with the inspector was in connection with his interest in an entity unconnected with the respondent employer. It follows, of course, that the claimant’s activity in meeting with the inspector was unconnected with his employment here. Therefore, we perceive no reversible error in the ALJ’s determination that the claimant was injured while meeting an inspector to further a mutual business interest he and Miner had in the project, outside of any employment relationship between the claimant and the named respondent.
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IT IS THEREFORE ORDERED that the ALJ’s supplemental order issued February 12, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
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PATRICK SCHAEFER, GREELEY, CO, (Claimant) MINER WHITE DBA SUMMIT CONSTRUCTION, Attn: ROBERT MINER STEVE WHITE, GREELEY, CO, (Employer) THE LAW OFFICES OF REGINA M WALSH ADAMS, Attn: REGINA M WALSH, ESQ., GREELEY, CO, (For Claimant).
RITSEMA LYON — FT COLLINS, Attn: DOUGLAS STRATTON, ESQ., FT COLLINS, CO, (For Respondents).
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