Opinion
Aug. 20, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
Page 1208
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye, Asst. Atty. Gen., for respondents Industrial Commission and James M. Shaffer, Director of the Division of Labor.
Duane O. Littell, Denver, for petitioners.
Butler, Lepore, Landrum & Pierce, P.C., L. F. Butler, Lakewood, for respondent Stephen H. Gowdy.
VAN CISE, Judge.
Grossman Construction Company and its insurer, United States Fidelity and Guaranty Company, petition for review of a final order of the Industrial Commission, alleging as error the finding that Grossman Construction Company was the employer of Stephen H. Gowdy (claimant) at the time of his industrial injury and ordering its insurer to pay workmen's compensation benefits to claimant. We affirm.
Claimant was employed to perform carpentry work on a construction job in Parker, Colorado. On March 27, 1973, while framing a window at the job site, he slipped and fell into a basement and injured his left heel. He initially filed a workmen's compensation claim against Jim Moore Cement Contractor, Inc., and its insurer. Rudy Grossman and Grossman Construction Company and its insurer were later brought in as additional parties. On conflicting evidence, the Commission found that Grossman Construction Company, rather than Jim Moore Cement Contractor, Inc., was the claimant's employer, and the award followed.
From the evidence, the Commission might have found that James W. Moore, doing business as Jim Moore Cement Contractors, Inc., was the employer and might have ordered its insurer, the State Compensation Insurance Fund, to pay claimant. However, the issue on this review is not whether the evidence supports a conclusion the Commission did not reach, but whether there is substantial evidence in the record to support the findings it did make--that Grossman Construction Company was the employer at the time of the injury.
The evidence, viewed in the light most favorable to sustaining the order of the Commission (Industrial Commission v. Allen, 28 Colo.App. 546, 478 P.2d 702), established that Rudy Grossman, doing business as Grossman Construction Company, was responsible for the framing work on the construction project. Claimant, a carpenter, was hired at the job site by Rudy Grossman. At all times thereafter, claimant worked under Grossman's supervision. When he was injured, he reported to Grossman. The only pay check he received was issued after the accident for a period including the day of the accident, was drawn on the account of Grossman Construction Company, and was for a net amount after the usual payroll deductions.
There is testimony that is in conflict with some of the above. However, since the findings are supported by substantial evidence, this court may not substitute its judgment for that of the Commission, Industrial Commission v. Bennett, 166 Colo. 101, 441 P.2d 648, and the findings are conclusive on review. Curtis v. Industrial Commission, 167 Colo. 462, 447 P.2d 1012; Gatewood v. Russell, 29 Colo.App. 11, 478 P.2d 679.
Order affirmed.
COYTE and SMITH, JJ., concur.