Opinion
W.C. No. 4-224-767
November 3, 1995
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Hopf (ALJ), which denied the claim for benefits. We affirm.
The issue in this case is whether the claimant was the respondent Krouse's statutory employee. The ALJ found that the claimant's husband, Greg Lee, contracted with Krouse to install a roof on property located in Silverthorne, Colorado. Krouse was in the position of general contractor on the property. In order to receive payment, Lee was to "submit a bill and get paid with a check."
The ALJ found that the claimant was injured when she fell from the roof on November 7, 1993. At that time, the claimant was helping her husband install the roof.
Greg Lee testified that he "coerced" his wife into helping him with the roof. The claimant stated that her "payment" was to be "a nice dinner out" while the Lees' child stayed with a sitter. The claimant also testified that she had helped her husband in the past and received a "nice dinner out."
Under these circumstances, the ALJ concluded that there was "no contract for hire between Greg Lee" and the claimant sufficient to create an employer-employee relationship under § 8-40-202(1)(b), C.R.S. (1995 Cum. Supp.). Therefore, the ALJ determined that the respondent is not liable for the claimant's injuries under the statutory employment provision found at § 8-41-401(1), C.R.S. (1994 Cum. Supp.).
On review, the claimant's first contention is that the ALJ erred in determining that there was no employment relationship between the claimant and her husband. The essence of the argument is that the claimant and her husband "negotiated" an agreement under which the claimant received "a nice dinner out" as compensation for her services as a roofer. Relying principally on Aspen Highlands Skiing Corp. v. Apostolou, 866 P.2d 1384 (Colo. 1994), the claimant reasons that the dinner is sufficient consideration for the creation of a valid employment contract. We find no error.
We do not dispute that if the claimant was an employee of her husband the respondent would be liable for the claimant's injuries under § 8-41-401. The true issue is whether the ALJ correctly ruled that the claimant should not be classified as her husband's employee.
Under § 8-40-202(1)(b), an employee is defined as a person in the service of any other person "under any contract of hire, express or implied." A contract contemplates "competent parties, subject matter, legal consideration, mutuality of agreement, and mutuality of obligation." Aspen Highlands Skiing Corp. v. Apostolou, supra. Thus, a contract for hire requires that the employee have the expectation of remuneration for the services performed, although the statute does not prescribe any particular form of remuneration. Aspen Highlands Skiing Corp. v. Apostolou, supra; Rocky Mountain Dairy Products v. Pease, 161 Colo. 216, 422 P.2d 630 (1966) .
Conversely, if a party performs services without the expectation of remuneration the person is a "volunteer," and not an employee within the meaning of the Workers' Compensation Act. Thus, in Hall v. State Compensation Insurance Fund, 154 Colo. 47, 387 P.2d 899 (1963), the court held that a claimant providing charitable services to a hospital was not an employee despite the fact that the hospital provided free meals to the claimant. As stated by the Court of Appeals, the status of a volunteer is not negated by "the fact that the alleged employer may provide some benefit on a gratuitous basis." Aspen Highlands Skiing Corp. v. Apostolou, 854 P.2d 1357, 1360 (Colo.App. 1992), aff'd 866 P.2d 1384.
The question of whether a contract has been formed is generally one of fact for resolution by the ALJ. Rocky Mountain Dairy Products v. Pease, supra. Consequently, we must uphold the ALJ's pertinent findings of fact if supported by substantial evidence. Section 8-43-301(8), C.R.S. (1995 Cum. Supp.). The substantial evidence test mandates that we defer to the ALJ's resolution of the conflicts in the evidence, her credibility determinations and the plausible inferences which she drew from the evidence. Monfort, Inc. v. Rangel, 867 P.2d 122 (Colo.App. 1993).
Here, substantial evidence supports the ALJ's implicit determination that the services performed by the claimant were voluntary rather than the result of a contract for hire. The evidence presented supports an inference that the claimant performed the roofing services out of loyalty and commitment to her husband, and not as a result of any "negotiated" contract for hire and expectation of remuneration. Unlike the situation in Apostolou, there is no evidence that the claimant and her husband engaged in a bargaining session, or that the claimant stated that she would have refused to provide the services in the absence of a "nice dinner." Moreover, the claimant's husband indicated that he engaged his wife as a method of avoiding the expense of hiring an employee. Further, the husband admitted that he did not regularly hire employees for his roofing business.
Under these circumstances, the ALJ could plausibly infer that the "nice dinner out" was a mere "gratuity" for the claimant's performance of voluntary services, not "consideration" for a contract of employment. The fact that the evidence might have supported a contrary finding and conclusion is immaterial on review. May D F v. Industrial Claim Appeals Office, 752 P.2d 589 (Colo.App. 1988).
The claimant also argues that the ALJ erred in considering the "marital relationship" in deciding the issues. The claimant reasons that the fact of her marriage to Greg Lee is not relevant because she has the capacity to contract. We disagree.
We do not dispute that husbands and wives may, under various circumstances, enter into binding contracts with one another. However, the ALJ did not rule that the wife was precluded from entering into an employment relationship with her husband. Instead, the ALJ merely determined that existence of the marital relationship made it less likely that the services were the result of a contract rather than voluntary participation. This is not an implausible assessment of the evidence, and therefore, we decline to interfere with it.
IT IS THEREFORE ORDERED that the ALJ's order, dated February 2, 1995, is affirmed.
INDUSTRIAL CLAIM APPEAL PANEL
___________________________________ David Cain
___________________________________ Bill WhitacreNOTICE
This Order is final unless an action to modify or vacate the Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, Colorado 80203, by filing a petition to 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 the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed November 3, 1995 to the following parties:
Shawn Lee, 4925.5 W. 34th Ave., Denver, CO 80212
Randy Joe Krouse, Metro Denver Garage Door, 744 Navajo, Denver, CO 80204-4412
Glen B. Goldman, Esq. and Joseph W. Ruppert, Esq., 950 S. Cherry St., Ste. 1400, Denver, CO 80222
(For the Claimant)
Patricia Jo Stone, Esq., 2535 S. Wadsworth, Lakewood, CO 80227
(For the Respondent)
By: ________________________