Opinion
W.C. No. 4-203-497
October 30, 1995
FINAL ORDER
This matter has previously been before us. On July 18, 1995, we issued an order which, in pertinent part, remanded the matter for a briefing schedule on Carpet Express' petition for review of an order of Administrative Law Judge Erickson (ALJ) dated October 3, 1994. Carpet Express contends that the ALJ erroneously determined that Carpet Express was the claimant's co-employer at the time the claimant sustained a compensable back injury, and therefore, Carpet Express contests the ALJ's order holding Carpet Express jointly liable for the workers' compensation benefits awarded to the claimant. Pursuant to our remand, a briefing schedule was established. However, Carpet Express did not file a brief in support of its petition for review, and the matter was recertified to us for review. We now affirm the October 3 order concerning the liability of Carpet Express.
The determination of whether the claimant sustained his burden to prove that his injury arose out of an employment relationship is a factual determination for the ALJ. Stampados v. Colorado D S Enterprises, Inc., 833 P.2d 815 (1992) . Consequently, we are bound by the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.); General Cable Co. v. Industrial Claim Appeals Office, 878 P.2d 118 (Colo.App. 1994). Further, the substantial evidence test requires that we defer to the ALJ's credibility determinations, his assessment of the sufficiency and probative value of the evidence and plausible inferences drawn from the record. Monfort Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
The ALJ's factual determinations are based upon the testimony presented at a hearing on September 13, 1994, which Carpet Express did not attend. The claimant was the sole witness, and the ALJ implicitly credited the claimant's testimony that he was working for both, Alfonso J. Sanchez and Carpet Express on January 31, 1994, when he tripped over a tarp and injured his back while installing carpet.
The claimant's testimony constitutes substantial evidence supporting the ALJ's findings of fact. See Savio House v. Dennis, 665 P.2d 141 (Colo.App. 1983). Therefore, we must uphold the ALJ's determination that the claimant's injury arose out of and in the course of his employment for Carpet Express. See Conover v. Industrial Commission, 125 Colo. 388, 244 P.2d 875 (1952); Rocky Mountain Dairy Products v. Pease, 161 Colo. 216, 422 P.2d 630 (1966). Moreover, the ALJ's determination supports a conclusion that Carpet Express is jointly liable for the claimant's workers' compensation benefits. See Baumgartner v. Industrial Claim Appeals Office (Colo.App. No. 94CA1928, April 13, 1995) (not selected for publication) (coemployers jointly and severally liable for workers' compensation benefits). Consequently, we may not disturb the ALJ's order concerning Carpet Express.
IT IS THEREFORE ORDERED that the ALJ's order dated October 3, 1994, concerning the respondent-Carpet Express is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the court, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date this Order is mailed, pursuant to section 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed October 30, 1995 to the following parties:
Christopher M. Duran, 1428 Cannon St., Louisville, CO 80027
Alfonso J. Sanchez, 881 Del Norte, Denver, CO 80221
John Vannoy, Carpet Express, 7171 N. Federal Blvd., Westminster, CO 80030
Joseph W. Ruppert, Esq., and Glen B. Goldman, Esq., 950 S. Cherry St., #1400, Denver, CO 80222
(For the Claimant)
Dennis H. Gunther, Esq., 4800 Wadsworth Blvd., #118, Wheat Ridge, CO 80033
(For the Respondent Sanchez)
Division of Workers' Compensation, Employer Compliance Unit, Attn: David Scutzenhofer
(Interagency Mail)
BY: _______________________