W.C. No. 4-343-300Industrial Claim Appeals Office.
October 20, 1998
FINAL ORDER
The non-insured respondent (Kimble) seeks review of a final order of Administrative Law Judge Stuber (ALJ), which awarded medical benefits and temporary total disability benefits. Kimble contends that the ALJ erred in determining that the claimant was not a “casual employee” as defined by § 8-40-302(3), C.R.S. 1998. We affirm.
The claimant testified that on May 21, 1997, she approached Kimble at his place of business, the Berkeley Inn, and inquired whether Kimble had any work for her. Kimble agreed to pay the claimant $35 to move a refrigerator/freezer from Kimble’s home to the Berkeley Inn.
It is undisputed that the Berkeley Inn is a bar. The claimant also testified that Kimble was in the process of remodeling an adjacent space to be used as a restaurant. (Tr. p. 49).
Under these circumstances, the ALJ found that the claimant and Kimble entered into a “one-time verbal contract” which required the claimant to move the refrigerator/freezer. The ALJ concluded that this agreement established an “employment” relationship falling under the Workers’ Compensation Act (Act). Finally, the ALJ stated that moving the freezer was “probably part of [Kimble’s] regular business of operating the bar/restaurant,” and therefore, the claimant was not a “casual” employee under §8-40-302(3).
On review, Kimble does not dispute that the contract with the claimant created an employment relationship as defined by the Act See § 8-40-202 (1)(b), C.R.S. 1998 (“employee” defined as service to any person “under any contract of hire, express or implied”). However, Kimble argues that the claimant is excluded from coverage under § 8-40-302(3), and that the ALJ used an unduly broad definition of the term “business, trade, or profession of the employer” in reaching the contrary conclusion.
We affirm the ALJ’s order, although for reasons different than those stated by the ALJ. Specifically, we conclude that Kimble was required to prove that he did not expend more than $2000 for casual employees, and he failed to do so.
Section 8-40-302(3) provides as follows:
“Articles 40 to 47 of this title are not intended to apply to employers of casual farm and ranch labor or employers of persons who do casual maintenance, repair, remodeling, yard, lawn, tree, or shrub planting or trimming, or similar work about the place of business, trade, or profession of the employer if such employers have no other employees subject to said articles 40 to 47, if such employments are casual and are not within the course of the trade, business, or profession of said employers, if the amounts expended for wages paid by the employers to casual persons employed to do maintenance, repair, remodeling, yard, lawn, tree, or shrub planting or trimming, or similar work about the place of business, trade, or profession of the employer do not exceed the sum of two thousand dollars for any calendar year. . .”
Section 8-40-302(3) creates a statutory exception to the general rule providing workers’ compensation coverage to persons performing services under a contract of hire. Butland v. Industrial Claim Appeals Office, 754 P.2d 422 (Colo.App. 1988) (statute exempts casual laborers from coverage only if, among other things, the duties they perform are not within the course of the trade, business or profession of the employer). Because §8-40-302(3) establishes an exception or defense to the general rule that injuries to an “employee” are compensable, Kimble bore the burden of proof to establish the factual predicates for application of the statute. See Cowin and Co. v. Medina, 860 P.2d 535 (Colo.App. 1992).
Here, Kimble states in his brief that there “is no evidence that [he] spent more than $2000 per year on casual employment.” (Respondent’s Brief p. 3) Although this is true, it is also true that Kimble failed to present evidence to negate the possibility that he spent more than $2000 for casual employment during the calendar year. This is significant because the claimant testified that Kimble regularly hires bar patrons to perform various functions including knocking out walls and floors for the remodeling project. (Tr. p. 49).
Under these circumstances, we conclude as a matter of law that Kimble failed to establish one of the factual predicates for the application of § 8-40-302(3). As Kimble himself concedes, the record is devoid of evidence concerning the total amount of money he spent on casual employment. Since the burden fell on Kimble to prove that he spent $2000 or less, the record is insufficient to support application of the defense.
Under these circumstances, we need not reach the issue of whether moving the refrigerator/freezer was in the course of Kimble’s business, trade, or profession. Further, we do not consider whether the claimant could be considered an independent contractor. That question was not raised in Kimble’s brief.
IT IS THEREFORE ORDERED that the ALJ’s order dated April 8, 1998, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Bill Whitacre
NOTICE This Order is final unless an action to modify or vacate theOrder is commenced in the Colorado Court of Appeals, 2 East 14thAvenue, Denver, Colorado 80203, by filing a petition to reviewwith the court, with service of a copy of the petition upon theIndustrial Claim Appeals Office and all other parties, withintwenty (20) days after the date the Order was mailed, pursuant to§§ 8-43-301(10) and 307, C.R.S. 1998.
Copies of this decision were mailed October 20, 1998 to the following parties:
Alice L. Scheeler, 2840 Beuton St., Edgewater, CO 80214
Harold Kimble d/b/a Berkeley Inn, 3834 Tennyson, Denver, CO 80212
Greg S. Russi, Esq., 1777 S. Harrison St., #906, Denver, CO 80210 (For the Respondent)
David M. Pantos, Esq., 1732 Race St., Denver, CO 80206 (For the Claimant)
BY: _______________________