Opinion
W.C. No. 4-781-144.
November 19, 2009.
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) dated June 9, 2009, that found the claimant was a casual worker who was excluded from the definition of employee under the Workers' Compensation Act (Act). We reverse and remand for further proceedings.
The following findings of fact made by the ALJ do not appear to be in dispute. The respondent owned six horses that she kept on a 12-acre parcel of land with a barn, a riding ring, and a house, which served as her residence. The respondent did not operate a business on her property. Rather, she kept the horses for her own personal use and enjoyment. The respondent was a real estate agent. The claimant solicited work from respondent stating that she was looking for a job helping care for animals. The claimant stated that she had a very flexible schedule and that "as far as pay I think that whatever you think would be fine." The claimant explained that she was seeking income to support her hobby, which was riding horses. The respondent replied that she could use the claimant's help in grooming and feeding her horses. The claimant was 16 years old and was not customarily engaged in the business of caring for horses. The respondent paid $1,260 to the claimant in 2008. On July 25, 2008, one of the horses the claimant was tending spooked and stepped on her. The claimant received medical care for the injury. The ALJ determined that the claimant was a casual farm or ranch laborer whose employment was not in the usual course of the trade, business, profession or occupation of the respondent.
Based upon his factual findings, the ALJ concluded that pursuant to § 8-40-302 (3) C.R.S. 2009 the claimant was excluded from the definition of "employee" because she performed casual farm or ranch labor. Therefore, the ALJ dismissed the claim for compensation.
The claimant appealed the ALJ's order, arguing that the ALJ erred because in order for the claimant to be a casual worker, her work must be occasional, incidental, temporary, emergent or haphazard. The claimant argues that she worked regularly for the respondent up to the date of her injury providing care and maintenance of the respondent's horses. We agree with this argument and conclude that the ALJ's factual findings do not support the conclusion that she is excluded from coverage under the Act by her status as a "casual" employee.
Our review of the ALJ's order is governed by § 8-43-301(8), C.R.S. 2009. Under that provision we may correct, set aside, or remand any order on the grounds "[t]hat the findings of fact are not sufficient to permit appellate review; that conflicts in the evidence are not resolved in the record; that the findings of fact are not supported by the evidence; that the findings of fact do not support the order; or that the award or denial of benefits is not supported by applicable law." Here, although the ALJ's findings of fact are supported by substantial evidence, the findings do not support the denial of benefits, and the order is not supported by applicable law.
In order to establish a right to the compensation provided for in the Act both the employer and employee must be subject to the provisions of the Act and at the time of the injury, the employee must be performing service arising out of and in the course of the employee's employment. Section 8-41-301 C.R.S. 2009; Madden v. Mountain West Fabricators, 977 P.2d 861 (Colo. 1999). The Act excludes an employer where the employment is casual farm and ranch labor, the employment is not in the usual course of trade, business, profession or occupation of the employer and the amounts expended for wages paid by the employer to do not exceed the sum of two thousand dollars for any calendar year. Section 8-40-302(3), C.R.S. 2009; see Daniels v. Gates Rubber Co. 479 P.2d 983 (Colo. App. 1970). An employee who is a casual farm or ranch laborer and whose employment is not in the course of his employer's business, is not entitled to compensation for accidental injuries under the Colorado Workmen's Compensation Act. See Hoshiko v. Industrial Comm'n of Colo., 83 Colo. 556, 266 P. 1114 (Colo. 1928). See also § 8-40-202(1)(b), C.R.S. 2009 ("employee" excludes any person whose employment "is but casual and not in the usual course of the trade, business, profession, or occupation of the employer.") Thus, under separate provisions, the Act excludes both an "employer" and an "employee" from coverage where the labor is "casual" and certain other requirements are satisfied.
Sections 8-40-302(3) and 8-40-202(1)(b) create a statutory exception to the general rule providing workers' compensation coverage to persons performing services under a contract of hire. Butland v. Industrial Claim Appeals Office, 754 P.2d 422 (Colo. App. 1988). Because taken together the statutes establish an exception or defense to the general rule that injuries to an "employee" are compensable, the respondent bore the burden of proof to establish the factual predicates for application of the statue. Scheeler v. Harold Kimble D.B.A. Berkely Inn, W. C. No. 4-343-300 (October 20, 1998); See Cowin and Co. v. Medina, 860 P.2d 535 (Colo. App. 1992).
Here, the ALJ appears to have relied largely on the informal nature of the relationship between the claimant and the putative employer. Thus, he found that in entering into the agreement with the respondent the claimant had stated that she had a very flexible schedule and that as far as pay she believed whatever the respondent thought appropriate would be fine. Tr. at 24; Exhibit D. The record contains evidence that the times the claimant worked varied from week to week depending upon the claimant's availability and such things as personal errands and time spent on a vacation. Tr. at 16, 26, 31. However, in our view, the flexibility of the claimant's schedule and her willingness to accept wages determined by the employer do not support the finding that her employment was casual.
Rather, the dispositive factor in that determination is the regularity of the work. The Colorado Supreme Court has observed that "[t]he word `casual' is the antonym of `regular.' Heckman v. Warren, 238 P.2d 854, 860 (1951); See also Lackey v. Industrial Commission, 249 P. 662 (1926); Hallum v. Industrial Claim Appeals Office (Colo. App. No. 99CA2182, September 14, 2000) (not selected for publication), setting aside Roop v. Hallum, W. C. No. 4-384-408 (May 3, 1999). The court also stated in Heckman that "[c]asual employment may be said to be that which is occasional, incidental, temporary, emergent or haphazard." Heckman, 238 P.2d at 860. Thus, in general, it is the "regularity" of the employment that principally distinguishes employment that is not "casual." See Industrial Commission v. Moynihan, 94 Colo. 438, 32 P.2d 802 (1934) (attorney regularly employed by a corporation was not a casual employee). We note that the hearing officer's factual findings do not support the conclusion that the claimant's rendering of services for the respondent here satisfied any of these descriptors used by the court to characterize casual employment. "Occasional" is defined as "not habitual" or "infrequent." "Incidental" is defined as "occurring or likely to occur as an unpredictable or minor accompaniment." "Haphazard" means "dependent upon or characterized by mere chance." See American Heritage College Dictionary (3d edition) at 943, 687, 617.
Here, it is true that the ALJ found that the claimant represented to the respondent that she was flexible with regard to both her pay and her availability for work hours. These factual findings are supported by substantial evidence in the factual record and, therefore, they are binding upon us on review. Section 8-43-401(8), C.R.S. 2009. However, the ALJ did not find that the claimant's rendering of services for the respondent was occasional in the sense that it was "not habitual" or "infrequent." Nor did the ALJ find that the employment was unpredictable or "characterized by mere chance." Nor, in our view, does the factual record admit of such inferences. To the contrary, the record is undisputed that the claimant's employment with the respondent was regular and, although both parties apparently recognized the "at-will" nature of the relationship, they also both contemplated that the employment relationship was to be ongoing. In this regard, we note that the respondent testified that she spoke with the claimant and emphasized that her work needed to be confined to "three to three and a half hours a day, three days a week." Tr. at 58. She also testified that she anticipated that the claimant would keep a schedule of ten and a half hours per week. Tr. at 61-62. In our view, the parties' mere flexibility in the matters of pay, hours, and conditions of work may not be translated to the sporadic, isolated, and haphazard quality necessary to characterize work as "casual." Because the record establishes that the claimant's performance of services for the respondent was regular and neither intermittent or sporadic, that record compels the conclusion that the claimant's employment was not casual. Therefore, we must set aside that portion of the ALJ's order.
Accordingly, we reverse the ALJ's conclusion that the claimant's work was casual and that she was not covered by the Act. It is, of course, necessary to remand for further proceedings to determine the benefits, compensation, and penalties owed to the claimant. In this regard, we note that the respondents raised the defense that the claimant was an independent contractor. However, the ALJ found that the claimant did not customarily engage in an independent trade, occupation, profession, or business related to the service performed. This factual finding, which in our view is supported by reasonable inferences from the record, precludes the conclusion that the claimant is an independent contractor. Therefore, the ALJ has resolved this contention against the respondents. Section 8-40-202(2)(a), C.R.S. 2009.
Because of our resolution of this matter, it is unnecessary for us to address the claimant's other arguments, which include that the respondent did not operate a farm or ranch and that she was paid in excess of $2000 per calendar year. Accordingly, we express no opinion concerning those arguments.
It also follows from our disposition of this matter that we deny the respondent's request for attorney fees.
IT IS THEREFORE ORDERED that the ALJ's order dated June 9, 2009 is reversed and the matter is remanded for a determination of the benefits, compensation, and penalties owed, if any.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Curt Kriksciun
Examiner Schrant dissents:
I respectfully disagree with my colleagues. I am unable to share their conviction that the record compels the conclusion that the claimant's employment was not casual. Here the majority cites evidence that the claimant's work needed to be "confined" as establishing a regular performance of services. I concede that the evidence may bear this interpretation. However, in my opinion, this same evidence may also be viewed as a plea from the widow employer to limit the money she paid to support the claimant's horse hobby. In my view, the employment by the claimant here is similar to that of the part-time softball umpire in Daniels v. Gates Rubber Co. 479 P.2d 983 (Colo. App. 1970). As noted in Larson's it is difficult to evolve a workable formula from the single ambiguous word "casual." 4 Larson, Workers Compensation Law, § 73.01. Therefore, in a close case, such as the one under review, I would defer to the weight given the evidence by the ALJ.
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KAMI JEAN MARTIN, PENROSE, CO, (Claimant).
LISA HYAMS, PENROSE, CO, (Employer).
WINSTON LAW FIRM, PC, Attn: JOSEPH R WINSTON, ESQ., COLORADO SPRINGS, CO, (For Claimant).
RITSEMA LYON — COLORADO SPRINGS, Attn: JOAN A GOLDSMITH, ESQ., COLORADO SPRINGS, CO, (For Respondents).