Opinion
W.C. No. 4-778-626.
February 18, 2010.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated July 29, 2009, that determined the claimant, as an owner/corporate officer, had rejected worker's compensation coverage under his company's policy and therefore denied his claim for benefits. We affirm.
The ALJ made the following pertinent findings of fact. The claimant is the owner and president of the employer. On October 23, 2008, the claimant contacted Rief, a licensed insurance agent at The Insurance Center, to obtain workers' compensation coverage for the employer. Rief testified that the claimant was in a hurry to obtain this coverage, and he wanted the policy written and finalized as quickly as possible. The claimant, on the insurance application form, stated that he was the president of the company and wrote that he wished to be excluded from coverage under the policy that would be issued. Exhibit A at 4. Rief sent to the claimant a Rejection of Coverage by Corporate Officers form. Exhibit A at 9. The claimant signed the rejection of coverage and in his own hand, checked the box stating that he elected to reject workers' compensation coverage for himself as a corporate officer. The claimant understood that by signing the rejection of coverage he was excluding himself from coverage. The claimant returned the signed forms to Rief with directions to send them to the insurer to obtain workers' compensation coverage for the employer. Rief submitted the insurance application to the insurer on October 24, 2008 and the insurer issued a policy on October 29, 2008 with an effective date of October 25, 2008. The policy was issued with an endorsement for Rejected Corporate Officer From Coverage. Exhibit A at 21. The claimant's testimony that he did not receive a copy of the endorsement for rejection of coverage form before the date of injury was not credible. The claimant was injured on November 26, 2008 in the course and scope of his employment. The claimant filed a worker's compensation claim and the insurer contested the claim. The ALJ determined that the claimant had rejected coverage and was not covered under the workers' compensation policy for the November 26, 2008 accident. The claimant brings this appeal.
I.
The claimant contends the ALJ erred when he found that the claimant rejected coverage under § 8-41-202, C.R.S. 2009 despite evidence that Rief forged the claimant's signature on Part A of the rejection of coverage form and improperly notarized and backdated Part B of the form. The claimant argues that the rejection of coverage forms sent at his request to the insurer were not in compliance with § 8-41-202 and the relevant workers' compensation rule of procedure. We are not persuaded that the ALJ committed reversible error.
Section 8-41-202 provides for rejection of coverage by corporate officers and others. The relevant sections of § 8-41-202 are set forth below:
(1) Notwithstanding any provisions of articles 40 to 47 of this title to the contrary, a corporate officer of a corporation or a member of a limited liability company may elect to reject the provisions of articles 40 to 47 of this title. If so elected, said corporate officer or member shall provide written notice on a form approved by the division through a rule promulgated by the director of such election to the worker's compensation insurer of the employing corporation or company, if any, by certified mail. If there is no workers' compensation insurance company, the notice shall be provided to the division by certified mail. Such notice shall become effective the day following receipt of said notice by the insurer or the division.
(2) A corporate officer's or member's election to reject the provisions of articles 40 to 47 of this title shall continue in effect so long as the corporation's or company's insurance policy is in effect or until said officer or member, by written notice to the insurer, revokes the election to reject said provisions.
W. C. Rule of Procedure 3-4, 7 Code Colo. Reg. 1101-3 (2009) deals with the election to reject coverage and provides as follows:
(A) An officer of a corporation or a member of a Limited Liability Company who elects to reject the provisions of the Act under § 8-41-202, C.R.S., shall complete the Division prescribed form and send it or a substantial equivalent, to the insurance carrier for the corporation's or company's other employees, if any, by certified mail. An agricultural corporation electing to reject coverage for its corporate officers pursuant to § 8-40-302(6), C.R.S., shall notify the insurance carrier in writing. If there is no insurance carrier, such documents shall be provided, by certified mail, to the Division.
(B) The Notice of Election to Reject Coverage shall become effective the next business day following receipt of the notice by the insurance carrier or, if none, by the Division.
A corporate officer and owner who exercises his right to reject coverage under § 8-41-202 is not considered an employee under the Act. Kelly v. Mile Hi Single Ply, Inc. 890 P.2d 1161 (Colo. 1995). In Kelly v. Mile Hi Single Ply, Inc., the court explained that although the Workers' Compensation Act of Colorado (Act) is intended to provide exclusive remedies for all employees injured on the job, the General Assembly has authorized corporate officers the option to reject workers' compensation coverage. This exception, recognized in 1983, was introduced in response to small business owners' complaints that the self-coverage requirement under the Act unduly burdened their operations. The 1983 amendment provided two primary benefits for small business owners: the right to reject compensation coverage and to avoid its premiums, and the corresponding right to choose their coverage without unnecessary duplication from the compensation scheme.
Here, the claimant essentially requests that he be relieved of the consequences of his rejection of coverage by pointing to certain actions of Rief, the licensed insurance agent at The Insurance Center, which resulted in alleged deficiencies in his written rejection of coverage under § 8-41-202 and W. C. Rule of Procedure 3-4. We note the claimant does not seek to void the policy of insurance. Rather, the claimant seeks only to void his rejection of coverage under the policy.
The Division of Workers' Compensation (Division) has prepared a written form for rejection of coverage by corporate officers. We note that under Rule 3-4 the corporate officer is to use this form "or a substantial equivalent" and send it to the insurance carrier. The form recommended by the Division is divided into Part A and Part B. The claimant first contends that he filled out most of the forms and faxed them to Rief. However, regarding Part A of the form he testified that he faxed the blank form to Rief. Rief testified that she filled out Part A and signed the claimant's name to it. The claimant contends that his rejection of coverage was ineffective because he had not filled in part A of the rejection form and so it had no legal consequence.
The claimant also contends that his rejection of coverage was ineffective because his signature was not notarized on Part B. The claimant testified that after he faxed the form over to Rief he called later in the day to make sure the forms had been received and stated that he knew the form for rejection of coverage had not been notarized and that he would get it notarized. Tr. at 108. Rief testified that she notarized Part B. Tr. at 87. The claimant denied giving anyone permission to notarize his signature and asserted that he did not have knowledge that these documents had been completed by Rief until after his accident on November 3, 2008. Tr. at 42.
It is provided in both § 8-41-202(1) and Rule W. C. Rule of Procedure 3-4 that for a corporate officer to reject coverage he shall provide written notice. Here, the claimant did provide such a written notice, but contends that because he did not sign one part of the form and his signature on another part of the form was not notarized that the rejection of coverage was not effective. We note that the claimant testified that all of the information in the rejection of coverage Part A was correct, except for his signature. Tr. at 38-39. We further note that Part A of the Division's recommended form does not require the claimant's signature. Rather, it requires the signature of a Corporate Secretary or LLC Manager. In addition, there is no dispute that the claimant signed part B of the form stating that he rejected coverage. Tr. at 24. Further, the underwriter further testified that the insurer would have accepted the rejection of coverage even if only Part B had been submitted. Tr. at 53.
Section 8-41-202(1) places the onus on the claimant as the corporate officer, not on the insurer, to submit his rejection of coverage on a form approved by the Division. In our view, the claimant seeks to take advantage of error as least partially created by himself in order to secure coverage that he took positive steps to reject. In our view, the claimant may not do this. See Toll v. McKenzie, 299 P.14, 88 Colo. 582 (1931) (party cannot plead his own wrong as a ground of obtaining relief); see also EZ Bldg. Components Mfg., LLC v. Industrial Claim Appeals Office, 74 P.3d 516, 518 (Colo. App. 2003) (upholding cancellation of insurance by substantial compliance where insurer gave actual notice of cancellation to Division and agent even though not sent by certified mail as required by statute). Moreover, the written notice of rejection of coverage under consideration here was in substantial compliance with 8-41-202(1) and Rule 3-4.
Further, the written form rejecting coverage utilized here is "a substantial equivalent" to the completed form recommended by the Division. Thus, the written form complies with Rule 3-4 and, in turn, § 8-41-202. Moreover, as noted above, all of the necessary material information regarding rejection of coverage was provided to the insurer and all of that information was correct. The claimant was an owner and corporate officer and he did desire to reject coverage. We are not persuaded that the ALJ erred in finding that the claimant had in compliance with § 8-41-202 and Rule 3-4 rejected coverage for himself, despite his failure to have his signature properly notarized and the failure to have someone directly from the employer sign at the bottom of Part A of the Division's recommended form.
On the issue of the claimant's failure have his signature notarized, the underwriter testified that the insurer would have accepted the rejection whether or not it had been notarized. Tr. at 51. In addition, in Fleming v. Judson Enterprises, W. C. No. 4-415-781 (June 15, 2001), the claimant contended that employment agreements were invalid because his signature was not notarized in his presence. In Fleming, the Panel concluded that where the record supports the ALJ's finding that the claimant admitted he signed the employment agreements the circumstances of the notarization are immaterial. Here, we similarly conclude that because the claimant admitted he signed the rejection of coverage it is immaterial whether his signature was properly notarized. See Shelden v. Platte Valley Sav. by Resolution Trust Corp. 794 P.2d 1083 Colo. App. 1990 (substantial compliance with statute is sufficient).
The claimant, citing Silver v. Colorado Cas. Ins. Co. 219 P.3d 324 (Colo. App. 2009), contends that the insurer is estopped from rescinding the insurance contract. In our view, the claimant's reliance on Silver v. Colorado Cas. Ins. Co. is misplaced. In Silver v. Colorado Cas. Ins. Co., the court dealt with the issue of whether an insurer could rescind an insurance policy on the basis of an alleged misrepresentation by the applicant. As we understand the present case there was no attempt upon the part of the insurer to rescind the contract. Rather, the insurer contends the claimant rejected coverage under § 8-41-202 and the insurer relies upon enforcement of that rejection of coverage.
Moreover, Silver v. Colorado Cas. Ins. Co., stands for the proposition that an insurer is estopped from rescinding an insurance contract and denying coverage on the basis of a misrepresentation in the application when the applicant acted in good faith and gave truthful information to the insurer's agent, but the agent inserted false information into the application. The rationale for this rule is that because in Silver v. Colorado Cas. Ins. Co., the applicant gave correct information to the insurer's agent, the insurer is deemed to know that contrary information in the application is false, and, having issued the policy despite knowing of the false information, may not later avoid liability on the policy based on the false statements. To the extent that Silver v. Colorado Cas. Ins. Co. has any application to the present case it is that an applicant should be bound by the truthful information he gave to the agent. Here, the ALJ, determined that the truthful information the claimant gave to the agent was that he desired to reject coverage under the Act.
Further, we are not convinced that all of the necessary elements of estoppel are present here. The doctrine of equitable estoppel may apply to preclude an insurer from denying coverage. See State Compensation Insurance Fund v. Wangerin, 736 P.2d 1246 (Colo. App. 1986) (estoppel to deny coverage by acceptance of premium after knowledge of loss); see also Leland v. Travelers Indemnity Co., 712 P.2d 1060 (Colo. App. 1985). In order to obtain relief under an estoppel theory, the claimant is required to prove that: 1) the insurer knew the relevant facts; 2) the insurer intended that its conduct be acted on or must so act that the claimant had a right to believe that the insurer's conduct was so intended; 3) the claimant was ignorant of the true facts; and 4) the claimant detrimentally relied on the insurer's conduct. See Johnson v. Industrial Commission, 761 P.2d 1140, 1146 (Colo. 1988).
Regarding the first estoppel factor there was no suggestion that the insurer directly knew anything other than that the claimant desired to be excluded from coverage and charged a lower premium pursuant to that request. To the extent the knowledge of Rief is attributable to the insurer the ALJ found that the claimant had informed her that he wished to be excluded from coverage and never took any steps to give notice to Rief or the insurer that he wished to change his decision. Therefore, to the extent that the claimant contends he later changed his mind about being covered he failed to prove that the insurer knew that he no longer desired to reject coverage.
In regards to the second estoppel factor of whether the insurer intended that its conduct that be acted on the ALJ found that the insurer had issued a clear endorsement stating that the claimant had rejected coverage as a corporate officer. Exhibit A at 21. The claimant's allegation that he did not receive this endorsement of rejection of coverage was found not to be credible. Therefore, the claimant failed to demonstrate that he had a right to believe by any conduct of the insurer that he was covered under the policy. To the contrary, the actions of the insurer put the claimant on notice that he was not covered under the policy.
On the third estoppel factor of whether the claimant was ignorant of the true facts, it is clear that the ALJ was persuaded that the claimant knew the policy had been issued excluding him from coverage prior to his accident. It was not until after the accident that the claimant first showed any dissatisfaction with the actions of Rief in securing the insurance policy with the endorsement showing rejection by corporate officer. Further, it is clear from his order that the ALJ was not persuaded the claimant was ignorant of the fact that he was excluded from coverage. The ALJ found that the claimant signed and returned the rejection of coverage form and told Rief that he wished to be excluded from coverage but took no steps to inform Rief or the insurer that he no longer wished to be excluded.
On the fourth estoppel factor of whether the claimant detrimentally relied on the insurer's conduct the ALJ's findings make it clear that he was not persuaded that the claimant detrimentally relied on any conduct of the insurer or formed a belief that he was covered under the policy. The ALJ made the following relevant findings of fact. Although the claimant testified that he did not know that the rejection of coverage had been completed and submitted to the carrier by Rief, the claimant's testimony that he had received from the insurer the Endorsement showing Rejection by Corporate Officer from Coverage document sent on October 29, 2008 was not credible. The claimant, at the time he signed this rejection, intended to reject coverage and he intended to have the document notarized. The claimant told the Insurance Center he would notarize the Rejection of Coverage, Part B, found on page 9 of Respondents' Hearing Exhibit A. The claimant read the entire document and understood it.
We are not persuaded that the claimant's failure to sign one portion of the rejection form and have his signature notarized on another part of the rejection form estopped the insurer from contending that the claimant elected not to be covered under the policy. The essential facts determined by the ALJ and supported by the record demonstrate that the claimant under his own volition caused a written form to be sent to the insurance carrier clearly indicating his desire to reject the provisions of the Act pursuant to § 8-41-202. Therefore, we concluded that the ALJ's determination that the claimant was not covered by the policy is consistent with the provisions of § 8-41-202(1) and Rule W. C. Rule of Procedure 3-4.
II.
The claimant next contends the evidence in the record does not support the ALJ's conclusion that the policy for workers' compensation insurance issued to Red Mountain Builders excluded him as a corporate officer from coverage because the Policy Information Page, which sets forth the terms of coverage, failed to specify the exclusion. The Information Page supplied by the insurer is found in Exhibit A at 22. The claimant compares this to a previous policy issued by the insurer in which there was a notation on the information page that he had been excluded from coverage. Exhibit 9 at 28. The claimant, citing the reasonable expectations doctrine, argues that relying on the Policy Information Page he formed the belief that he was covered under the policy for injuries he suffered on November 26, 2008.
When determining the rights and obligations that exist under an insurance policy, we apply principles of contract interpretation and attempt to carry out the parties' reasonable expectations when the policy was issued. We enforce insurance contracts as written, giving the words and phrases their plain and ordinary meaning. Cotter Corp. v. American Empire Surplus Lines Ins. Co., 90 P.3d 814 (Colo. 2004); Thompson v. Maryland Cas. Co., 84 P.3d 496 (Colo. 2004). "Our construction of the policy provisions must be `fair, natural and reasonable' rather than strained or strictly technical." Public Serv. Co. v. Wallis Cos., 986 P.2d 924, 939 (Colo. 1999) (quoting Johnson v. American Family Life Assurance Co., 583 F.Supp. 1450, 1453 (D. Colo. 1984)). "Courts should not rewrite insurance policy provisions that are clear and unambiguous." Compass Ins. Co. v. City of Littleton, 984 P.2d 606, 613 (Colo. 1999).
The interpretation of a contract is usually a matter of law and we may determine its meaning de novo, including whether it is ambiguous. Fiberglas Fabricators, Inc. v. Klyberg, 799 P.2d 371 (Colo. 1990); Plummer v. Dr. Jade Dillon, W.C. No. 4-614-549 (April 20, 2007). In determining whether a contract provision is ambiguous, the instrument must be construed as a whole and the language must be given a harmonious effect, giving words and phrases their ordinary meanings. Allstate Insurance Co. v. Avis Rent a Car System, Inc., 947 P.2d 341 (Colo. 1997). An ambiguity arises when the contract is "reasonably susceptible to more than one meaning." Cheyenne Mountain School District v. Thompson, 861 P.2d 711, 715 (Colo. 1993), quoting Northern Ins. Co. of New York v. Ekstrom, 784 P.2d 320, 323 (Colo. 1989).
In our view, the ALJ was correct that the Rejection of Coverage Election signed by the claimant was unambiguous, clear and definitive on its face and that the claimant was not covered by the policy. Further, the endorsement of rejection of coverage found by the ALJ to have been sent to the claimant and included as part of the policy is in our view free from ambiguity. Exhibit A at 21. The endorsement clearly states that "Rob Boyle" as a corporate officer rejected coverage. This is particularly true when the totality of the circumstances is kept in mind that the endorsement was issued in response to the request of the claimant. Moreover, the claimant has not stated any authority that the policy of insurance must identify the exclusion of corporate officer from coverage on the information page as opposed to executing a specific endorsement recognizing the rejection by the corporate officer from coverage. Therefore, because the policy contains no ambiguity, in our opinion the doctrine of reasonable expectations is not applicable to the present case. See Fire Ins. Exchange v. Sullivan P.3d, 2009 (Colo. App. 2009) (doctrine of reasonable expectations is an interpretative tool used to resolve an ambiguity, and where an exclusion in a policy is unambiguous, the doctrine does not apply).
However, to the extent that the doctrine of reasonable expectations is applicable we note that it applies if there is a dispute as to the existence of insurance coverage. Tynan's Nissan, Inc. v. American Hardware Mut. Ins. Co. 917 P.2d 321 (Colo. App. 1995). It provides that an insurer who wishes to avoid liability must do so in clear and unequivocal language and must call such limiting conditions to the attention of the insured. Absent such disclosure, coverage will be deemed to be that which could be expected by the ordinary lay person. Peters v. Boulder Insurance Agency, Inc., 829 P.2d 429 (Colo. App. 1991); Leland v. Travelers Indemnity Co., 712 P.2d 1060 (Colo. App. 1985). We are directed to attempt to carry out the parties' intent and reasonable expectations when they drafted the policy. Struble v. American Family Ins. Co. 172 P.3d 950 (Colo. App. 2007).
The claimant's argument under the reasonable expectations doctrine appears to be premised on the assertion that after issuance of the policy and before the accident he was unaware that pursuant to his own request he had been excluded from coverage. However, the ALJ determined that was not the case. On the issue of the claimant's knowledge that he had at his own request been excluded from coverage, the ALJ made the following findings of fact with record support. The insurer issued the policy on October 29, 2008, with an effective date of October 25, 2008. The claimant admitted he received the Policy Information Page and the insurance policy issued by the insurer after it was mailed on October 29, 2008. The policy issued with the statement "Endorsement: Rejected Corporate Officer From Coverage," found on page 21 of respondents' Hearing Exhibit A. At the bottom of the policy issued that day, found on pages 15 through 26 of the claimant's hearing Exhibit 8, is a date and time stamp showing when the policy documents were printed. The policy and the "Endorsement: Rejected Corporate Officer From Coverage" documents were printed at the same time by the insurer. They were mailed together to the claimant/employer and The Insurance Center. The documents were not returned as undeliverable to the insurer. Rief received the policy with the "Endorsement: Rejected Corporate Officer From Coverage" form from insurer. This document shows that the policy was amended to show that the claimant as a corporate officer rejected coverage with the insurer. The claim notes maintained by the insurer show that the policy issued by insurer on October 29, 2008 contained a signed rejection form. The claimant's testimony that he did not receive the "Rejected Corporate Officer From Coverage" form before the date of the injury was found not to be credible by the ALJ.
The ALJ's findings establish that after issuance of the policy and before the accident the claimant was aware that pursuant to his own request that he had been excluded from coverage. Further, these findings are supported by substantial evidence and therefore binding on us. Section 8-43-301(8), C.R.S. 2009. We note in particular the ALJ's specific credibility finding regarding the claimant's testimony. In our view, the circumstances here certainly do not present the type of extreme circumstances that would justify setting aside the ALJ's credibility determination. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo. App. 2000).
Here, the ALJ specifically found that the Rejection of Coverage Election signed by the claimant was unambiguous, clear and definitive on its face. Because the claimant stated that he had read and understood the document, the ALJ did not need to resort to extrinsic evidence to ascertain that the claimant intended to reject coverage for himself when he applied for and obtained workers' compensation insurance for the employer with the insurer. However, the ALJ also found that extrinsic evidence also established that the claimant was not covered under the policy. The ALJ found that the claimant's hearing testimony, the testimony of the underwriter, the testimony of Rief, the hearing exhibits such as page 4 of the respondents' hearing Exhibit A, all showed that the claimant rejected workers' compensation coverage with the insurer and was not covered by the insurer's workers' compensation policy for the employer-claimant on November 26, 2008. To the extent that there was any ambiguity regarding the terms of the contract or the need to employ the doctrine of reasonable expectations as an interpretative tool to resolve an ambiguity and preserve the intention of the parties, we again agree with the ALJ that the parties intended the claimant to be excluded from coverage. See Dupre v. Allstate Ins. Co., 62 P.3d 1024, 1028 (Colo. App. 2002).
In our view, the ALJ's decision is consistent with the intent and reasonable expectations of the parties. The exclusion in question is not one buried in a lengthy insurance contract that the insurer failed to bring to the attention of the insured. Rather, the claimant here had to take the affirmative step to request that he be excluded from coverage and he unquestionably did so. The claimant presumably elected the option to reject workers' compensation coverage in order to avoid burdensome premiums. The ALJ credited the testimony of the underwriter that the policy covered only one employee with a payroll of $21,000 a year, far less than the $47,000 in payroll that would have been used had the claimant been covered under the policy. The low payroll was used to calculate the premium charged to the employer on the insurance application excluding the claimant from coverage when the policy was issued on October 29, 2008. We note that the claimant, as he pointed out, was familiar with rejecting coverage as a corporate officer. The ALJ found that the claimant's testimony that he did not receive the Rejected Corporate Officer From Coverage form before the date of the injury was simply not credible. In such circumstances, we are not of the opinion that the ALJ was compelled as a matter of law to conclude that the claimant's intent was to be covered under the policy. Therefore, we perceive no error in the ALJ's determination that the claimant rejected coverage and was not covered by the policy when he was injured on November 26, 2008.
The claimant finally contends that the policy provides for modification of the assigned work classifications of the insured operations during the policy period if the actual exposures are not properly described by those classifications. The claimant argues that the endorsement modifying the section on classifications under Item 4 was not sent to the claimant until after his loss, and he quickly took steps to modify the policy to make sure that he was covered, as permitted under the policy. The claimant argues that consistent with the policy terms within 90 days of when he was notified by the insurer that his policy did not include him within the provision of the coverage, he notified the insurer of a change of classification.
On this issue we note that the claimant claims he notified the insurer of a change in classification within 90 days after he received information that his policy did not include him as follows (October 25, 2008 + 90 days = January 23, 2009). This appears to be a concession by the claimant that he received notification from the insurer on October 25, 2008 that he was not included within the provisions of the coverage, which would be a date before the November 26, 2008 accident. This assertion in turn contradicts another assertion made by the claimant in a separate part of his brief that he had not received the exclusion endorsement until December 11, 2008, which was a date after the accident.
In any event, the claimant draws the conclusion that the classification section is not determinative of the terms of the policy because that section can be modified after the issuance of the policy. The claimant asserts this proposition in opposition to the testimony of the insurer's underwriter that the terms of the coverage of the policy are also contained on page 2 of the Information Page referring to classifications category for purposes of premium calculation. The underwriter, referring to the second page of the Policy Information Page, explained that the employer was not covered because the only employee, designated as "EM," was included for purposes calculating payroll, which in turn determined the premium owed. The underwriter explained that if the claimant as employer had been covered under the policy he would have been listed in this section. Tr. at 54-56; Exhibit 8 at 16. In our view, this line of testimony is consistent with the ALJ's determination that the insurer was not liable for compensation and benefits because the claimant had rejected coverage pursuant to § 8-41-202.
To the extent that the claimant contends that because the classification section can be modified after the issuance of the policy, it means that the claimant was covered by the policy at the time of the accident, we are unpersuaded. Section 8-41-202(2) provides that a corporate officer's election to rejection coverage "shall" be in effect until said officer by "written notice to the insurer" revokes the election. Section 8-44-102, C.R.S. 2009 provides that every contract for the insurance of compensation and benefits under the Act shall be made subject to all the provisions of the Act and all provisions in such contract for insurance inconsistent with the provisions of said Act shall be void. In our view, the ALJ's determination that the claimant did not have workers' compensation coverage on the date of his accident is consistent with the plain meaning of § 8-41-202(2). Here, the claimant did not notify the insurer in writing before the accident that he revoked his election to reject coverage and therefore his rejection of coverage continued to be in effect at the time of the accident pursuant to § 8-41-202(2).
In conclusion, it is undisputed that at the time of the accident, the claimant was a corporate officer of the employer. The ALJ found, with record support, that prior to the accident, the claimant exercised his option as a corporate officer to reject workers' compensation coverage for himself pursuant to the provisions of § 8-41-202. This was a valid exercise of his rights under the Act pursuant to a provision enacted by the legislature at the request of business owners and corporate officers. This election to reject coverage was never revoked and was in effect at the time of the accident.
IT IS THEREFORE ORDERED that the ALJ's order dated July 29, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
ROBERT BOYLE, CRESTED BUTTE, CO, (Claimant).
RED MOUNTAIN BUILDERS, INC., CRESTED BUTTE, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
BISSET LAW OFFICE, Attn: JENNIFER BISSET, ESQ., ENGLEWOOD, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN, LLC, Attn: CRAIG R ANDERSON, ESQ., COLORADO SPRINGS, CO, (For Respondents).