W.C. No. 4-261-540Industrial Claim Appeals Office.
October 22, 1997
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wheelock (ALJ), insofar as it determined that he was an employee of the uninsured respondent, Integrity Business Services, Inc. (IBS), calculated his average weekly wage, and failed to impose certain penalties. IBS seeks review of the ALJ’s order insofar as it determined that IBS was the claimant’s employer and increased the claimant’s compensation based on its failure to have insurance at the time of the injury. We affirm the order in part, and remand for entry of a new order.
This matter is before us for the third time. In our last Order of Remand, dated March 17, 1997, we directed the ALJ to enter a new order concerning whether or not the claimant was a statutory employee of respondent Red Oak Carpet Center (Red Oak), as insured by Allied Mutual Insurance Company.
In an order dated May 6, 1997, the ALJ found that there is “no substantial credible evidence that the normal business of Red Oak involved installing carpet.” Consequently, the ALJ found that the evidence failed to establish that the Red Oak was the claimant’s statutory employer. Otherwise, the ALJ incorporated her prior orders of November 28, 1995, and September 23, 1996. A summary of those orders may be found in our prior orders.
I.
Claimant and IBS first contend that the ALJ erred in denying the claimant’s motion for submission of newly discovered evidence. This motion was filed subsequent to our March 17, 1997, Order of Remand. The motion alleges that witness O’Neil submitted an affidavit admitting that he was an employee of Red Oak at the time of the claimant’s injury, and that Red Oak was in the business of carpet installation. The claimant alleges that these admissions are contrary to O’Neil’s testimony at the 1995 hearing, and could alter the ALJ’s determination of whether he was Red Oak’s employee by estoppel, and whether Red Oak was his statutory employer. We disagree with this argument.
Our March 17 Order of Remand did not contemplate the taking of additional evidence in this case. In fact, we expressly stated that the ALJ “need not hold an additional hearing” to resolve the question of whether the claimant was Red Oak’s statutory employee. This limitation was designed to insure speedy resolution of this long-delayed claim.
It follows that the ALJ correctly applied our Order of Remand by declining the claimant’s invitation to receive additional evidence. See Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986) (administrative agency is in best position to determine the scope of its order of remand). In fact, had the ALJ received such evidence, she would have exceeded the scope of the remand. In reaching this result, we should not be understood as precluding the claimant from exercising his right to file a petition to reopen based on mistake of fact. See Lewis v. Scientific Supply Co., Inc., 897 P.2d 905
(Colo.App. 1995); London v. El Paso County, 757 P.2d 169
(Colo.App. 1988).
II.
The claimant and IBS next contend that the ALJ erred in finding that there is no credible evidence that the claimant was a statutory employee of Red Oak. These parties cite various factors which, in their view, establish that the claimant was Red Oak’s statutory employee. We find no error.
The question of whether the evidence was sufficient to establish that the claimant was performing services which were part of Red Oak’s regular business, “as defined by its total business operation,” was a question of fact for the ALJ. See Finlay v. Storage Technology Corp., 764 P.2d 62 (Colo. 1988). We are not free to substitute our judgement for that of the ALJ concerning the weight of the evidence or the credibility of the witnesses. Section 8-43-301(8), C.R.S. 1997; Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo.App. 1995).
The claimant’s argument notwithstanding, the ALJ was not compelled to conclude that carpet installation was part of Red Oak’s regular business. The claimant presented little, if any, direct evidence concerning Red Oak’s regular business operations. For instance, it is not known whether Red Oak regularly installed carpet for its customers, or merely sold carpet for installation by other businesses. Considering the scarcity of the evidence, we decline the claimant’s invitation to substitute our judgment for that of the ALJ concerning the inferences to be drawn from the evidence.
III.
The claimant argues that the ALJ erred in failing to join U.S. Homes, Inc., as a putative statutory employer. In a motion filed after the ALJ’s initial order of November 22, 1995, the claimant alleged that U.S. Homes was a general contractor potentially liable as a statutory employer. The ALJ denied the motion to join on February 1, 1996, and a subsequent motion for a “corrected order.”
In our view, the denial of the motion to join U.S. Homes does not constitute a final and reviewable order under §8-43-301(2), C.R.S. 1997. The statute provides that a party dissatisfied with an order may file a petition to review “an order which requires any party to pay a penalty or benefits or denies a claimant any benefit or penalty.” See CFI Steel Corp. v. Industrial Commission, 731 P.2d 144 (Colo.App. 1986).
The ALJ’s order denying the motion to join U.S. Homes does not preclude the claimant from filing a separate claim for benefits against U.S. Homes. Thus, the failure to join U.S. Home does not amount to a denial of benefit to the claimant, nor does it require any party to pay any benefits or penalties. Thus, the ALJ’s ruling on this issue is not currently subject to review.
IV.
The claimant next contends that the ALJ erred in calculating his average weekly wage. The claimant asserts that this issue was not “raised” before the ALJ, and that the uncontroverted evidence establishes that his rate of pay was $750 per week. We disagree.
Here, the claimant requested temporary total disability benefits. Therefore, determination of the claimant’s average weekly wage was a necessary prerequisite to an award of benefits.
Moreover, at the hearing, evidence was presented concerning the claimant’s earnings during his employment. (Tr. pp. 34, 44). No objections were raised to presentation of this evidence, and the ALJ considered it in assessing the average weekly wage. Under these circumstances, the issue was tried by consent, and the claimant waived any objection to the ALJ’s determination of the average weekly wage. See Robbolino v. Fischer-White Contractors, 738 P.2d 70 (Colo.App. 1987).
V.
The claimant’s final argument is that the ALJ erred in failing to impose penalties against IBS for its failure timely to admit or deny liability, and for failure to pay medical benefits in a timely fashion. So far as we can ascertain, the ALJ did not address these penalties in any of her orders. Consequently, with respect to these issues, the matter must be remanded to the ALJ for entry of an order specifically determining whether or not the circumstances justify imposition of penalties under the pertinent statutes. We should not be understood as expressing any opinions on the question of penalties.
We note that IBS has argued that it should not be subject to any penalties because its putative insurer became insolvent, and IBS did “all that it could” to maintain insurance. However, insofar as IBS is objecting to the increase in compensation based on its failure to maintain insurance, the ALJ’s order was proper regardless of “good faith” on the part of IBS. Anderson v. Dutch Maid Bakeries, Inc., 106 Colo. 201, 102 P.2d 740
(1940); U.S. Fidelity Guaranty, Inc. v. Kourlis, 868 P.2d 1158 (Colo.App. 1994). With regard to the other penalties which the claimant is seeking, it is premature to determine what effect, if any, the conduct of IBS might have.
IT IS THEREFORE ORDERED that the ALJ’s order dated May 6, 1997, is affirmed.
IT IS FURTHER ORDERED that the matter is remanded for entry of an additional order concerning the claimant’s entitlement to penalties based on failure timely to admit or deny liability, and failure timely to pay medical benefits.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify orvacate the Order is commenced in the Colorado Court of Appeals, 2East 14th Avenue, Denver, Colorado 80203, by filing a petition toreview with the court, with service of a copy of the petitionupon the Industrial Claim Appeals Office and all other parties,within twenty (20) days after the date the Order was mailed,pursuant to §§ 8-43-301(10) and 307, C. R. S. 1997.
Copies of this decision were mailed October 22, 1997 to the following parties:
William C. Wright, 2875 Lone Feather, Colorado Springs, CO 80909
Kevin O’Neil, Red Oak Carpet Center, 4250 Hancock, Colorado Springs, CO 80911
Integrity Business Services, Attn: Mike McQuiddy, 7150 Campus Dr., Ste. 325, Colorado Springs, CO 80920
Allied Mutual Insurance Co., Attn: Kristine Shaddox, P.O. Box 5190, T.A., Denver, CO 80217-5190
Employer Compliance Unit, Attn: Rebecca Grebin (Interagency Mail)
W. Thomas Beltz, Esq. Daniel A. West, Esq., 729 S. Cascade Ave., Colorado Springs, CO 80903 Ted A. Krumreich, Esq. John Lebsack, Esq., 1225 17th St., 28th Flr., Denver, CO 80202 (For Red Oak Allied Respondents)
James Clifton, Esq., 5353 W. Dartmouth Ave., #400, Denver, CO 80227
David Shakes, Esq., 4055 Nonchalant Circle South, Colorado Springs, CO 80917
By: __________________________________________________