W.C. No. 4-750-935.Industrial Claim Appeals Office.
May 28, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated December 17, 2008, that denied and dismissed the claim for workers’ compensation benefits against the respondent Big Bear Trucking, Inc. (Big Bear Trucking). We affirm.
The claimant fractured his right ankle when he accidentally fell to the ground from the bed of a truck on January 12, 2008. The claimant contended that he was working as an employee of Big Bear Trucking when he suffered his accident. The ALJ credited the testimony of representative of Big Bear Trucking that the claimant was never employed as a driver for the company. The ALJ found that the claimant was performing services at the time of his injury for the maintenance lead of Big Bear Trucking but the claimant failed to show that he was an employee performing services for the Big Bear Trucking at the time of his injury. Therefore, the ALJ dismissed the claim against Big Bear Trucking.
The claimant brings this appeal contending that the ALJ erred in ruling that he had failed to prove he suffered a compensable injury within the course and scope of his employment with Big Bear Trucking. We are not persuaded that the ALJ committed reversible error.
At the time of the hearing Big Bear Trucking, among other things, argued that § 8-40-302 C.R.S. 2008 exempts causal labor from coverage under the Workers Compensation Act (Act). In the claimant’s brief submitted in support of his petition to review the claimant argues that the provisions of § 8-40-302 only apply if such employments are casual and not within the course of the trade, business, or profession of
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the employer. The claimant argues that here the claimant was injured while transporting refuse and transportation is the business of Big Bear Trucking.
However, as we read the order the ALJ did not deny the claim based on identifying the claimant as providing causal labor within the meaning of § 8-40-302. Instead the ALJ found no persuasive evidence showing a contract of employment between the claimant and Big Bear Trucking. The ALJ concluded that the claimant failed to show that he was an employee performing services for Big Bear Trucking at the time of his injury. Therefore, we are not persuaded by the claimant’s arguments that under § 8-40-302 the claimant should not be exempt from coverage under the Act
To be entitled to workers’ compensation benefits, a person must qualify as an employee under the statutory definition. Denver Truck Exch. v. Perryman, 134 Colo. 586, 595, 307 P.2d 805, 811 (1957); Section 8-40-202(1)(b) C.R.S. 2008. The burden is on the claimant to prove that he was an employee when he was injured. See Hall v. State Compensation Ins. Fund, 154 Colo. 47, 50, 387 P.2d 899, 901 (1963); Younger v. City and County of Denver 810 P.2d 647 (Colo. 1991). Moreover, if there is substantial evidence in support of the ALJ’s factual determination that there was no contract of employment between claimant and Big Bear Trucking, Inc. at the time of the claimant’s injury, that determination is binding on review. Section 8-43-301(8) C.R.S. 2008; see generally I.M.A. Inc. v. Rocky Mountain Airways, Inc., 713 P.2d 882 (Colo. 1986) (whether parties have entered into a contract is a factual determination); see also Denver Truck Exchange v. Perryman, supra; Rohring v. Jim and Adrienne Brink dba Wilderness Trailobo, Inc., (W.C. 3-046-691 March 20, 1987).
Here the ALJ made the following findings of fact with record support. Big Bear Trucking operates an over-the-road trucking company. Tr. 45. Oscar Favela (Oscar Senior) is president, his son Lorenzo is the vice president and his other son Oscar Junior is maintenance lead for Big Bear Trucking. Tr. at 45 63. Prospective drivers for Big Bear Trucking must have a valid commercial driver’s license (CDL). Tr. at 70. The claimant lacked a valid CDL. Tr. at 46-47. The claimant’s friend applied for and was given a driving position with Big Bear Trucking. Tr. at 69. The claimant accompanied his friend on various over-the-road trips through the end of 2007. Tr. at 9. The claimant’s sons testified that Big Bear Trucking never employed the claimant as a driver. Tr. at 62 46. The testimony of the sons is supported by the employer’s detail of transactions from its business account showing all payments to drivers during 2007. Exhibit 4 at 6-10; Tr. at 80. That document shows a check paid to the claimant’s friend, but no checks paid to the claimant. Exhibit 4 at 6-10. Oscar Junior received a call from the claimant in January 2008 asking for work. Tr. at 46-47. Oscar Junior offered the claimant work removing tomato vines from a ranch where Oscar Junior lived. Tr. at 47. The tomato plants were a side project Oscar Junior pursued to earn extra money. Tr. at
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47-48. Oscar Senior owns the ranch and the county had ordered Oscar Junior to remove the tomato vines. Tr. at 47-48. Oscar Junior hired the claimant to load the vines on a dump truck and to drive it some 40 miles to a farm across the county line. Tr. at 46-47. The claimant loaded the vines onto a truck and at the time of the accident the claimant was unloading the vines from the truck on a farm owned by a third party. Tr. at 11-13. The ALJ determined that the claimant was performing work for Oscar Junior at the time of his accident but Oscar Junior was not named as a respondent in this action. The ALJ concluded that while the claimant subjectively believes he was an employee while driving with his friend, there was no persuasive evidence showing a contract of employment between the claimant and Big Bear Trucking.
In our view the above findings constitute substantial evidence supporting the ALJ’s determination that the claimant was not an employee of Big Bear Trucking at the time of his injury. Consequently, we perceive no basis upon which to set aside the ALJ’s order. Kroupa v. Industrial Claim Appeals Office, 53 P.3d 1192 (Colo.App. 2002).
IT IS THEREFORE ORDERED that the ALJ’s order dated December 17, 2008 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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MANUEL RODRIGUEZ-CERVANTES, THORNTON, CO, (Claimant).
BIG BEAR TRUCKING, INC., Attn: LORENZO FAVELA, FORTLUPTON, CO, (Employer).
RING ASSOCIATES, PC, Attn: JESS M PEREZ, ESQ., FORT COLLINS, CO, (For Claimant).
THOMAS C THRUSH, ESQ., DENVER, CO, (For Respondents).
DENVER HEALTH HOSPITAL AUTHORITY, Attn: STEPHEN M. LASKY, ESQ., DENVER, CO, (Other Party).