Opinion
Dec. 31, 1974.
Editorial Note:
This case has been marked 'not for publication' by the court.
John P. Moore, Atty. Gen., John E. Bush, Deputy Atty. Gen., Peter L. Dye,
Page 1010
Swenson & Pickens, Howard J. Swenson, Lakewood, for petitioner.
Asst. Atty. Gen., Denver, for respondents The Industrial Commission of the State of Colorado and James M. Shaffer, Executive Director of Division of Labor, Dept. of Labor and Employment.
Robert W. Hite, Robert R. Hoadley, Jr., Denver, for respondent Mr. Steak, Inc. (B.P.S., Inc.).
SMITH, Judge.
Petitioner, Donna La Porta, seeks review of an order of the Industrial Commission which found that her employer at the time of her compensable accident was R.M.J., Inc., and not, as she contends, Mr. Steak, Inc. We affirm.
The referee's extensive findings of fact included the following: Donna La Porta was employed by the Showcase Restaurant and Lounge as a cocktail waitress. While engaged in this occupation she sustained an accidental injury to her neck on February 16, 1971. May Evans Adler was a lessee of the improved real property occupied by the restaurant. B.P.S., Inc., was a subsidiary of Mr. Steak, Inc., which had purchased Adler's interest in the business. The interests of both Adler and B.P.S., Inc., were transferred to R.M.J., Inc., in September 1970, and R.M.J., Inc., owned the business on the date of the accident. The purchase agreement was complied with until May 14, 1971, when R.M.J., Inc., defaulted.
The liquor licenses continued to be held in the name of Mr. Steak, Inc., and B.P.S., Inc. The purpose of this arrangement was to permit R.M.J., Inc., to remain in business until it could obtain its own liquor license. While we do not comment upon the legality of this arrangement, we note that the actual ownership of the liquor license is not conclusive as to who was, in fact, the employer of claimant at the time of her accident.
Petitioner first asserts that Mr. Steak was a statutory employer at the time of the accident pursuant to C.R.S.1963, 81--9--1. This statute states, in essence, that any person or corporation which conducts its business by leasing or contracting out any part of it to a lessee or subcontractor, shall be considered a statutory employer under the act. The referee did not find such a relationship existing between Mr. Steak and any other party. Instead, the referee concluded the agreement with R.M.J., Inc., established that Mr. Steak sold whatever business interests it had in the Showcase to R.M.J., Inc., in 1970. The only relationship that Mr. Steak had with the Showcase subsequent to its sale was the liquor license still outstanding in the name of Mr. Steak's subsidiary, B.P.S., Inc. Our reading of the record convinces us that the evidence supports the referee's findings and conclusions and, therefore, we may not set them aside on review. Industrial Commission v. Allen, 28 Colo.App. 546, 478 P.2d 702.
Our affirmance of the finding, that Mr. Steak, Inc., was not the employer of claimant, is dispositive of the remaining issues presented by her petition for review, and thus we need not discuss them.
Order affirmed.
ENOCH and STERNBERG, JJ., concur.