W.C. No. 4-771-444.Industrial Claim Appeals Office.
November 6, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated August 7, 2009, that granted summary judgment and denied and dismissed any claim by the claimant for compensation and benefits. We affirm.
The respondent filed a Motion for Summary Judgment contending it had never employed the claimant in any capacity. An affidavit of the Vice President of the respondent accompanied the motion along with other exhibits. The claimant did not file a response to the motion or any other responsive pleading. The ALJ determined that summary judgment in favor of the respondent was appropriate based upon the undisputed facts and applicable law. Therefore, the ALJ ordered that all claims by the claimant for compensation and benefits against the respondent on account of his injury of August 12, 2008 be denied and dismissed.
The claimant’s petition to review the ALJ’s order granting summary judgment is presently before us. The petition to review contains only the bare statement that the claimant wants his “day in court!” Moreover, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo. App. 1986).
Summary judgment is appropriate in workers’ compensation cases where, as here, the facts are undisputed. See Office of Administrative Courts’ Rule of Procedure (OACRP) 17, 1 Code Colo. Reg. 104-3 (2009). An ALJ must apply the summary judgment standard applicable under C.R.C.P. 56 Fera v. Indus. Claim Appeals Office, 169 P.3d 231, 233 (Colo. App. 2007). On review, we must accept the ALJ’s statement if
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substantial evidence in the record supports that statement of facts, but we must set aside the grant of summary judgment in an employer’s favor if we determine that conflicts in the evidence are not resolved in the record or the order is not supported by applicable law. Id. We review the ALJ’s legal conclusions de novo. AC. Excavating v. Yacht Club II Homeowners Ass’n, 114 P.3d 862, 865 (Colo. 2005); Coates, Reid Waldron v. Vigil, 856 P.2d 850, 856 (Colo. 1993).
We note that summary judgment is a drastic remedy and is not warranted unless the moving party demonstrates that it is entitled to judgment as a matter of law. Van Alstyne v. Housing Authority of Pueblo, 985 P.2d 97 (Colo. App. 1999). And all doubts as to the existence of disputed facts must be resolved against the moving party, and the party against whom judgment is to be entered is entitled to all favorable inferences that may be drawn from the facts. Kaiser Foundation Health Plan v. Sharp, 741 P.2d 714 (Colo. App. 1987).
The ALJ made the following findings of fact. The respondent is a broker of moving services. Clients contact the respondent to request packing, loading and other moving-related services. The respondent then contacts one of its local service providers to provide the actual moving services in the area where the move is to occur. The respondent contracted with A Smart Move, LLC, to provide moving services for a residential move on August 12, 2008. The claimant was hired by A Smart Move, LLC to provide moving services. On August 12, 2008, while performing moving services for A Smart Move LLC the claimant sustained a compensable injury. At the time of the claimant’s compensable August 12, 2008 injury, A Smart Move, LLC was insured for workers’ compensation benefits under a policy provided by Pinnacol Assurance. The claimant entered into a Settlement for Withdrawal of All Claims with Pinnacol Assurance, which insured A Smart Move, LLC. The settlement was approved by an order dated February 12, 2009 issued by a prehearing ALJ. The respondent did not have a contract of hire with the claimant to provide moving services or other work. The respondent did not hire the claimant or provide moving services for the respondent. The claimant was never employed in any capacity by the respondent. The respondent did not provide any compensation or wages to the claimant for the move on August 12, 2008 nor did the respondent control or direct the claimant’s activities in provided moving services on August 12, 2008.
The ALJ, referencing § 8-40-202(1)(b) C.R.S. 2009, determined that the claimant was not an “employee” as defined in the Workers’ Compensation Act of Colorado (Act). The ALJ found that there was no contract of hire, express or implied between the respondent and the claimant and therefore the claimant was not an employee of the respondent. The ALJ also found that A Smart Move LLC was a subcontractor of the respondent and had insured its liability under the Act. Therefore, the ALJ determined,
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pursuant to § 8-41-401 C.R.S. 2009 that the respondent was not a statutory employer who would be liable to the claimant for compensation and benefits under the Act.
In our view, the ALJ’s findings of fact are supported by substantial evidence in the record. We note in particular exhibits attached to the Motion for Summary Judgment. These exhibits include the affidavit of the Vice President of the respondent, a Workers’ Claim for Compensation filed by the claimant against A Smart Move LLC, Employers’ Workers Compensation Insurance Coverage Verification form for A Smart Move LLC, and settlement documents approved by a Pre-hearing ALJ. Those undisputed facts constitute substantial evidence supporting the ALJ’s findings of fact See § 8-43-301(8), C.R.S. 2009. Additionally, although we review the ALJ’s legal conclusions de novo, we perceive no legal error in the ALJ’s conclusion that no applicable legal theory would make the respondent liable for the claimant’s injury under these undisputed facts.
The respondent made a sufficient showing, through its motion and supporting exhibits, that there were no genuine issues of fact and that therefore it was entitled to summary judgment. The burden of proving the existence of a factual dispute then shifted to the opposing party and the failure of that party to satisfy its burden entitles the moving party to summary judgment. Gifford v. City of Colorado Springs, 815 P.2d 1008 (Colo. App. 1991). Additionally, as noted by the ALJ, OACRP 17 provides that if there is a disputed issue of material fact, the objection to the motion for summary judgment “must specifically identify the disputed issue of material fact.”
Here the claimant made no showing that there was any genuine disputed issue to be resolved in a hearing. Even in his petition to review, the claimant does not attempt to demonstrate by relevant and specific facts that a real controversy exists. Therefore, we perceive no reason to disturb the ALJ’s order granting summary judgment.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 7, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ Curt Kriksciun
__________________________________ Thomas Schrant
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LAMONT J SWAGERTY, AURORA, CO, (Claimant).
PACKING AND LOAD SERVICE, CLEARWATER, FL, (Employer).
RITSEMA LYON, Attn: ROBERT V WREN, ESQ., DENVER, CO, (For Respondents).
CMAC, Attn: KELLY CROFT, LAKELAND, FL, (Other Party).