Opinion
W.C. No. 4-259-283
October 18, 1996
FINAL ORDER
The respondents seek review of a final order of Administrative Law Judge Friend (ALJ) which ordered them to pay temporary disability benefits based upon an average weekly wage (AWW) of $841.46. We affirm.
This matter was before us previously. In an Order of Remand dated, June 18, 1996, we reversed the ALJ's prior order which denied the claim. We concluded that the record lacked substantial evidence from which the ALJ could reasonably infer that the claimant was customarily engaged in an independent trade. Therefore, we concluded that the evidence did not support the ALJ's determination that the claimant was not Gary C. Thiret's (Thiret) "employee" at the time the claimant suffered work-related injuries. Consequently, we concluded that the ALJ erred in denying the claim, and we remanded the matter further proceedings concerning the claimant's entitlement to benefits.
On remand, the ALJ found that the claimant worked for Thiret from April 3, 1995 to June 19, 1995 and earned a total of $9,256.10 for an average of $841.46 per week. Therefore, the ALJ determined the claimant's AWW to be $841.46. The ALJ also determined that the industrial injuries rendered the claimant temporarily and totally disabled. Consequently, the ALJ ordered the respondents to pay temporary total disability benefits based upon an AWW of $841.46.
I.
On review, the respondents reassert their contention that, under the criteria set forth in former § 8-40-202(2)(b)(II), C.R.S. (1994 Cum. Supp.), the claimant was working as an "independent contractor," and not an "employee" at the time of the industrial injury. The respondents also contend that the claimant "maintained a separate and distinct business" as evidenced by the "CCIA Independent Contract Application" in which the claimant indicated that he expected to receive less than twenty percent of his annual income from Thiret. The respondents also rely upon the fact that the claimant was not required to work exclusively for Thiret.
In response, the claimant contends that the respondents are barred from contesting our determination that the claimant was Thiret's "employee" because the respondents failed to file a petition to review our order of June 18. However, our June 18 order did not award or deny any benefit or penalty to the claimant. Rather, our order expressly remanded the matter to the ALJ for further proceedings concerning the claimant's entitlement to specific workers' compensation benefits. Consequently, our order was not a final order which was subject to judicial review. Section 8-43-301(8), C.R.S. (1996 Cum. Supp.); Director of Division of Labor v. Smith, 725 P.2d 1161 (Colo.App. 1986). It follows that the respondents' failure to appeal the June 18 order does not preclude them from arguing that the claimant was an independent contractor.
Nevertheless, we reject the respondents' arguments that the claimant was not Thiret's "employee." Our Order of Remand details the analysis relied upon to conclude that the respondents failed to prove that the claimant was working as an independent contractor as defined by § 8-40-202(2), and that analysis need not be repeated here. The respondents further arguments in support of their contention that the claimant was "customarily engaged in an independent trade" are not persuasive. In fact, our June 18 order specifically states that evidence which indicates that the claimant was not required to work exclusively for the putative employer is not dispositive of whether the claimant was engaged in an independent trade. See Locke v. Longacres, 772 P.2d 685 (Colo.App. 1989). Therefore, we decline to reconsider our conclusions and adhere to our order of June 18 concerning the employment relationship between the claimant and Thiret.
II.
The respondents also contend that the ALJ erroneously failed to deduct the claimant's "business expenses" in calculating the claimant's AWW. In support, the respondents cite Elliott v. El Paso County, 860 P.2d 1363 (Colo. 1993). We perceive no error.
Initially, we conclude that the respondents waived their "expense" argument because it was not raised before the ALJ. See Apache Corp. v. Industrial Commission, 717 P.2d 1000 (Colo.App. 1986) (issues cannot be considered for the first time on appeal). At the commencement of the hearing, the respondents admitted that the claimant's AWW should be computed by adding "everything he got paid between the time he started and the time he quit, and divide it by the number of weeks." (Tr. p. 4).
In any case, the respondents reliance upon Elliott v. El Paso County, supra, in support of their contention that the ALJ should have deducted the claimant's business expenses in determining the claimant's AWW, is misplaced. In Elliott the court held that it is proper to deduct depreciation expenses from the gross earnings of a self-employed worker in determining the worker's AWW. However, Elliott did not address the deduction of expenses where the worker was earning "wages."
Furthermore, in Filippone v. Industrial Commission, 41 Colo. App. 322, 590 P.2d 977 (1978), the court recognized that all employees have expenses associated with their employment. However, in Sneath v. Express Messenger, 881 P.2d 453 (Colo.App. 1994) , the court held that there is no statutory provision for the deduction of expenses from an employee's gross compensation, when calculating the employee's AWW.
Here, the claimant was not "self-employed." To the contrary, the claimant was working for Thiret as an "employee" at the time of the injury. Therefore, we reject the respondent's argument that the ALJ erred in failing to reduce the claimant's gross earnings by the amount of the claimant's "expenses."
Moreover, even if the respondents' legal argument were correct, the respondents do not cite any specific evidence, and we are unable to locate any such evidence in the record, from which the ALJ could reasonably determine the nature and amount of the claimant's "expenses." To the contrary, the respondents only assert that claimant "presumably" had such expenses. Under these circumstances the respondents have failed to establish grounds which afford us a basis to interfere with the ALJ's calculation of the claimant's AWW.
IT IS THEREFORE ORDERED that the ALJ's order dated June 24, 1996, 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. (1996 Cum. Supp.).
Copies of this decision were mailed October 18, 1996 to the following parties:
Thomas M. Roberts, 3306 Longview Rd., Erie, CO 80516
Gary C. Thiret, Certified Home Improvement, 322 E. Oak St., Ft. Collins, CO 80524-2915
Colorado Compensation Insurance Authority, Attn: Curt Kriksciun, Esq. (Interagency Mail)
Joel M. Pollack Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
Richard E. Samson, Esq., 515 Kimbark St., Ste. 105, P.O. Box 1079, Longmont, CO 80502 (For the Claimant)
BY: _______________________