Opinion
W.C. No. 4-777-941.
November 4, 2009.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Krumreich (ALJ) dated April 22, 2009, that denied and dismissed the claimant's claim for compensation. We affirm.
The claimant alleged that on August 24, 2007 he was working for the employer installing a swimming pool when he strained his back lifting a ground tamper. The ALJ found that the owner credibly testified the claimant never worked on the pool and was never an employee of the employer, but only performed services for the employer when the claimant was a worker from a temporary work agency for one day on May 21, 2007. The ALJ concluded that the claimant had failed to prove the existence of a contract of hire, either express or implied, between himself and the employer sufficient to entitle the claimant to benefits under the Workers' Compensation Act (Act). The claimant filed a petition to review in which he made the following arguments.
I.
The claimant contends that the ALJ applied an incorrect legal standard when he found that there was no "meeting of the minds" and a contract for hire was not established. The claimant, citing Aspen Highlands Skiing Corp. v. Apostolou, 854 P.2d 1357 (Colo. App 1992), aff d, 866 P.2d 1384 (Colo. 1994) argues that in determining whether a contract for hire exists under the Act, technical requirements for a contract need not be observed.
However, in Aspen Highlands Skiing Corp. the court, citing Hall v. State Compensation Insurance Fund, 154 Colo. 47, 387 P.2d 899 (1963), noted that if the services are volunteered without any expectation of compensation in return, the fact that the alleged employer may provide some benefit on a gratuitous basis will not convert a volunteer into an employee. Here the ALJ specifically found that the claimant volunteered certain services for the owner, but was not acting as an employee under a contract of hire, either express or implied. On the issue of the existence of a contract of hire, the ALJ found the testimony of the owner to be more credible and persuasive than that of the claimant.
For purposes of the Act, an employer-employee relationship is established when the parties enter into a "contract of hire." Section 8-40-202(1)(b), C.R.S. 2009; Younger v. City and County of Denver, 810 P.2d 647 (Colo. 1991). The essential elements of a contract are competent parties, subject matter, legal consideration, mutuality of agreement, and mutuality of obligation. See Denver Truck Exchange v. Perryman, 134 Colo. 586, 307 P.2d 805 (Colo. 1957); Anna Kay Tressell Deceased, John Tressell Claimant v. Alpha Therapy Services, LLC, W. C. No. 4-322-755 (December 15, 1999).
In Denver Truck Exchange v. Perryman, the court in discussing whether Colorado had jurisdiction over a claim noted that the place where the offer is accepted, or where the last act necessary to a "meeting of the minds" is considered the place where the contract is made. Further, the panel has determined that where the parties ascribe different meanings to a material term of the contract and that term is ambiguous, the parties have not "manifested mutual assent" and there has been no "meeting of the minds" and no valid contract exists. Westerman v. Manitou and Pikes Peak Railway and/or High Bridge Saloon, W. C. Nos. 3-903-645, 4-407-473 (November 17, 2000). See Sunshine v. M.R. Mansfield Realty, Inc., 575 P.2d 847 (Colo. 1978). Therefore, in our view, the ALJ did not error in considering whether there was a "meeting of the minds" in deciding whether a contract for hire had been established.
II.
The claimant contends that substantial evidence does not support the order. The claimant maintains that he presented overwhelming evidence that he was employed by the respondent employer when he was injured on August 24, 2007. The claimant argues that the ALJ's reasoning that the owner paid for such items as repairs on the claimant's vehicle merely because he was a friend is illogical.
Because the existence of a contract for hire is generally a question of fact for the ALJ, we must uphold the ALJ's order if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009; Tuttle v. ANR Freight System, Inc., 797 P.2d 825 (Colo. App. 1990); Cassidy v. Rocky Mountain Communications, W. C. Nos. 4-597-715 and 4-597-716 (March 18, 2005); Pfuhl v. Prime, Inc., W.C. No. 4-215-435 (February 16, 1995). In applying this standard, we are obliged to view the evidence in the light most favorable to the prevailing party and defer to the ALJ's resolution of conflicts in the evidence, his credibility determinations and the plausible inferences which he drew from the evidence. Industrial Commission v. Royal Indemnity Co., 124 Colo. 210, 236 P.2d 293 (1951); Metro Moving Storage Co. v. Gussert, 914 P.2d 411 (Colo. App. 1995).
The claimant points to records in the evidence such as vehicle repair receipts for the claimant's vehicle paid for by the employer, an express toll road pass paid for by the employer and employer records signed by the claimant. The claimant concedes that he could produce no W-2s, but contends this was because he was paid in cash. The claimant also notes his own testimony and testimony from two other witnesses who testified that the claimant worked for the respondent employer. This testimony included a witness who was a supervisor on a home building project that had contracted with the employer to perform certain work. This witness testified that he would call the owner of the respondent employer to have work performed and the owner would send out the claimant to perform the work. The claimant also presented testimony from an employee of the respondent employer who testified he routinely saw the owner pick up the claimant in the morning for work and then drop him off in the evening at home after work.
However, the ALJ found that the claimant's testimony was inconsistent and not credible or persuasive. We may not set aside a credibility finding unless the testimony of a particular witness, although direct and unequivocal, is "so overwhelmingly rebutted by hard, certain evidence directly contrary" that a fact finder would err as a matter of law in believing the witness. Halliburton Services v. Miller, 720 P.2d 571 (Colo. 1986); Johnson v. Industrial Claim Appeals Office, 973 P.2d 624 (Colo. App. 1997). Here we do not perceive extreme circumstances which would require us to set aside the ALJ's credibility determination. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo. App. 2000).
The ALJ made the following findings of fact with record support. On May 21, 2007, the claimant worked for a temporary work agency and was assigned to work for the employer on that day. Tr. at 93. After that day the claimant asked the owner of the employer if he could do subcontract work for him. Tr. at 93. The owner informed the claimant that he could only do so if he had his own workers' compensation and liability insurance. Tr. at 93. The claimant never obtained the insurance coverage and, therefore, the employer never contracted with the claimant to perform any subcontract work. Tr. at 93. The employer does excavation on construction sites and uses both equipment operators and laborers to perform this work. Tr. at 90-91. All of the equipment operators are union members and the non-union laborers perform such tasks as street cleaning and snow removal around foundations. Tr. at 91. The majority of the non-union laborers are hired through a temporary work agency. Tr. at 91. When the owner met the claimant, he enjoyed his company and they became friends. Tr. at 93. The owner never paid claimant money for any services performed, though he did loan money on several occasions as a friend. Tr. at 94. The claimant was never an employee of the employer. Tr. at 92. The only time the claimant performed any services for the employer was when the employer requested temporary workers from the temporary work agency on May 21, 2007. Tr. at 92-93.
In addition, the ALJ made the following findings of fact, again supported by the record. The claimant alleged he was injured lifting a ground tamper on August 24, 2007 while installing a swimming pool for the employer. Tr. at 28-29. However, the ALJ found the owner's testimony credible that the claimant never worked on the pool, that the owner did most of the work himself and that a ground tamper was not used while working on that pool. Tr. at 103-04. The claimant testified that he called the owner on August 24, 2007 and told him of the injury, but the owner testified that he never received a call from the claimant regarding an alleged injury. Tr. at 104. Instead, the owner was first made aware of the claimant's alleged injury when a claims representative contacted him in December of 2008 after the claimant filed his claim for compensation. Tr. at 104.
On the issue of the claimant's signatures on two work orders for employees from the temporary work agency, the ALJ was persuaded by the owner's testimony. The owner testified that on these two occasions the claimant called and stated that he was at the development where these temporary workers were working; the workers were leaving and asked the owner if he wanted him to sign the work orders since he was there. Tr. at 101-02. The owner testified that he told the claimant to go ahead and sign the work orders. Tr. at 102. The ALJ concluded that the claimant was not working for the employer when he signed the work orders, but volunteered his services and was not acting as an employee. In our view, this determination is a plausible inference drawn from the record and therefore we must uphold it. Section 8-43-301(8), C.R.S. 2009.
On the issue of the payment of certain bills for maintenance on the claimant's truck, dental work and an express toll pass, the ALJ found that the employer paid these bills out of generosity to the claimant as a friend and not as apart of any remuneration for work or expectation of work by the claimant under a contract of hire. Tr. at 96, 99-101. The ALJ found the evidence persuasive that the owner expected and in fact did receive re-payment in cash from the claimant for at least a portion of the expenses paid. Tr. at 96-97, 99.
The claimant's arguments notwithstanding, there is substantial evidence in the testimony of the owner to support the ALJ's finding that the claimant failed to sustain his burden to prove he was an employee contract of hire with the employer at the time of the alleged injury. Moreover, the ALJ determined that the claimant did not work at the time of his injury as alleged by the claimant. Consequently, the existence in the record of conflicting testimony or of evidence that would support a contrary result does not provide a basis for setting aside the ALJ's order. See Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo. App. 1999) (the existence of conflicting evidence does not lessen the import of substantial evidence in support of a finding).
IT IS THEREFORE ORDERED that the ALJ's order dated April 22, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant THIS PAGE INTENTIONALLY LEFT BLANK
KENT A DELL, DENVER, CO, (Claimant).
JAZ CON, LLC, AURORA, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
THE FRICKEY LAW FIRM, Attn: ADAM McCLURE, ESQ., LAKEWOOD, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN LLC, Attn: ALEXANDRA E COLEMAN, ESQ., DENVER, CO, (For Respondents).
PINNACOL ASSURANCE, Attn: MS SUMMER WORSHAM, DENVER, CO, (Other Party).