Opinion
W.C. No. 4-491-607
January 7, 2002
FINAL ORDER
Donlan Construction Inc., (Donlan) and its insurer, Sierra Insurance Company (collectively the respondents) seek review of an order of Administrative Law Judge Martinez (ALJ) which determined Donlan was the claimant's statutory employer and required the respondents to pay medical benefits. We affirm.
The claimant suffered injuries on July 13, 2000, while working as a framer for Randall Rowland (Rowland) doing business as Brakkaf Construction. The injury occurred when a 20 foot wall fell down, and knocked the claimant on the head. The claimant denied any back problems prior to the injury but testified that after the injury he developed low back pain. In October 2000 the claimant sought chiropractic treatment from Dr. Redd for complaints of low back pain. The claimant subsequently treated with Dr. Edgar who referred him to Dr. Hehmann. Dr. Hehmann recommended an MRI which revealed a herniated disc at L5-S1.
The ALJ found Donlan subcontracted with Rowland to frame a residential home being built by Donlan. To complete the framing project Rowland hired about 10 people including the claimant. On conflicting evidence the ALJ found the claimant was Rowland's employee and not an independent contractor.
Further, the contract between Donlan and Rowland required Rowland to provide workers' compensation insurance for his employees. However, Rowland was uninsured for workers' compensation at the time of the claimant's industrial accident. Consequently, the ALJ determined Donlan was the claimant's statutory employer.
The ALJ also determined that neither Rowland nor the respondents timely designated a treating physician. Consequently, the ALJ determined Drs. Redd, Edgar and Hehmann were authorized providers and held Rowland and the respondents jointly and severally liable for medical expenses incurred by the claimant with the authorized providers.
I.
On review the respondents contend the ALJ erroneously failed to find the claimant was an independent contractor at the time of the injury. We perceive no error.
Section 8-40-202(2)(a), C.R.S. 2001 states that an individual performing services for another is deemed to be an employee, "unless such individual is free from control and direction in the performance of the service, both under the contract for performance of service and in fact and such individual is customarily engaged in an independent trade, occupation, profession, or business related to the service performed." Independence may be proven through a written document signed by the parties which contains the elements of independence set forth in § 8-40-202(2)(b)(II)(a)-(I), C.R.S. 2001. However, no one element is dispositive and the existence of some elements of independence does not preclude a finding that the claimant was an employee. Nelson v. Industrial Claim Appeals Office, 981 P.2d 210 (Colo.App. 1998).
The respondents bore the burden to prove the claimant was an independent contractor and not an actual employee at the time of the injury. Frank C. Klein v. Colorado Compensation Insurance Authority, 850 P.2d 323 (Colo.App. 1993). The question of whether the respondents sustained their burden of proof was a factual determination for the ALJ. Locke v. Longacre, 772 P.2d 685 (Colo.App. 1989); Weld County Kirby Co. v. Industrial Commission, 676 P.2d 1253 (Colo.App. 1983). We must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2001 Under this standard, we must defer to the ALJ's credibility determinations, his resolution of conflicts in the evidence, and the plausible inferences which the ALJ drew from the record. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155 (Colo.App. 1993).
The record is subject to conflicting inferences concerning the claimant's employment relationship with Rowland. Within his sole prerogative the ALJ resolved the conflict in favor of the claimant and determined that the preponderance of the evidence indicated the claimant was Rowland's employee. In particular, the ALJ found the claimant did not "bid" the framing job and there was no written contract between Rowland and the claimant. The ALJ also determined the claimant and Rowland were free to end the employment relationship at any time without further liability. Further, the ALJ found Rowland paid the claimant by the hour and that the paychecks were issued in the claimant's personal name even though the claimant owned his own business, known as Robins Construction. In fact, the ALJ found Rowland did not even know the name of the claimant's business. As to whether the claimant customarily engaged in an independent trade the ALJ found the claimant did not advertise the business, had not subcontracted for any framing jobs in 2000, and was working exclusively for Rowland at the time of the injury. Finally, the ALJ found the Rowland provided tools through the claimant's co-workers, and to some extent exercised control in the performance of the claimant's work by telling him when to show up for work each day. There is substantial evidence to support these findings. (Tr. pp. 13, 30, 44, 55, 78, 80, 83). Moreover, these findings support the ALJ's determination that the respondents failed to prove the claimant was an independent contractor. Consequently, we need not consider the contrary evidence relied upon by the respondents. See F.R. Orr Construction v. Rinta, 717 P.2d 965 (Colo.App. 1985) (substantial evidence is probative evidence which would warrant a reasonable belief in the existence of facts supporting a particular finding, without regard to the existence of contradictory testimony).
II.
Next, the respondents contend the record does not support the ALJ's finding of a causal relationship between the claimant's back pain and the July 13 injury. Again we disagree.
It is the claimant's burden to prove a causal relationship between the industrial injury and the medical condition for which he sought benefits. Section 8-43-301, C.R.S. 2001 ; Snyder v. Industrial Claim Appeals Office, 942 P.2d 1337 (Colo.App. 1997). However, the claimant is not required to prove causation by medical certainty. Rather it is sufficient if the claimant presents evidence of circumstances indicating with reasonable probability that the condition for which he seeks medical treatment resulted from or was precipitated by the industrial injury, so that the ALJ may infer a causal relationship between the injury and need for treatment. See Industrial Commission v. Riley, 165 Colo. 586, 441 P.2d 3 (1968). Furthermore, causation may be established entirely through circumstantial evidence. Rockwell International v. Turnbull, 802 P.2d 1182 (Colo.App. 1990).
The respondents' arguments notwithstanding, there is substantial evidence in the testimony of the claimant, and the claimant's former co-workers, Mike Paul and Vicki Switzler to support a causal connection between the industrial accident and his subsequent back symptoms. (Tr. pp. 20, 22, 25-26, 69). Furthermore, the testimony is consistent with Dr. Edgar's report dated November 7, 2000 in which the claimant reported the onset of back pain after being struck by a wall. Moreover, as found by the ALJ, both Dr. Edgar and Dr. Hehmann attributed the claimant's back problems to the July injury. (Hehmann, March 22, 2001). Therefore, we cannot say the ALJ erred in finding the claimant sustained his burden to prove the requisite causal relationship between his condition and the industrial accident.
III.
In any case, the respondents contend the ALJ erred as a matter of law in finding that Drs. Redd, Edgar and Hehmann are authorized providers. We are not persuaded.
The employer is liable for all authorized medical treatment which is reasonably necessary to cure or relieve the effects of the industrial injury. Sims v. Industrial Claim Appeals Office, 797 P.2d 777 (Colo.App. 1990). Section 8-43-404(5)(a), C.R.S. 2001 provides that:
"the employer or insurer has the right in the first instance to select the physician who attends said injured employee. If the services of a physician are not tendered at the time of injury, the employee shall have the right to select a physician or chiropractor." (Emphasis added).
Once the respondents have exercised the right to select the treating physician the claimant may not change physicians without approval from the insurer or the ALJ, unless the respondents impliedly give the claimant permission to select the treating physician. Greager v. Industrial Commission, 701 P.2d 168 (Colo.App. 1985). However, if the services of a physician are not tendered at the time of injury, the right of selection passes to the claimant, and the employer may not recapture the right of selection by subsequently referring the claimant to a specific physician. Rogers v. Industrial Claim Appeals Office, 746 P.2d 565 (Colo.App. 1987).
An employer has a duty to tender treatment as soon as "knowledge of the injury first comes to its attention." Rogers v. Industrial Claim Appeals Office, supra. The employer has sufficient information to trigger its duty to tender medical treatment when the employer has:
"some knowledge of accompanying facts connecting the injury or illness with the employment and indicating to a reasonably conscientious manager that the case might involve a potential compensation claim."
Jones v. Adolph Coors Co., 689 P.2d 681 (Colo.App. 1984).
Here, the record supports the ALJ's determination that Rowland had notice of a potential compensation claim by July 14, (Tr. p. 49), but did not tender the services of a physician. Similarly, Rowland did not offer any medical services in November when the claimant informed him he was seeing a chiropractor for treatment of back pain caused by the industrial accident. (Tr. p. 52). Under these circumstances, the ALJ did not err in finding that the right to select the treating physician passed to the claimant, who chose Dr. Redd to treat the injury.
However, the respondents contend they are not bound by Rowland's failure to designate a treating physician because they were unaware of the injury until February 13, 2001. Therefore, they contend they are not liable for the treatment of Dr. Redd and Dr. Edgar. We reject these arguments.
The statutory employer statute recognizes that employees may not be in a position to know whether the subcontractor for whom they are employed has workers' compensation insurance. Section 8-41-401(1)(a), C.R.S. 2001 provides that a company which contracts out part or all of its work to any subcontractor is the statutory employer of the subcontractor and the subcontractor's employees. The purpose of statute is protect injured employees and prevent employers from "avoiding responsibility under the workers' compensation act by contracting out their regular work to uninsured independent contractors." Finlay v. Storage Technology Corp., 764 P.2d 62 (Colo. 1988). Thus, where the general contractor fails to insure that its subcontractor has workers' compensation insurance for its employees, the insured general contractor becomes liable for injuries of the subcontractor's employees. Herriott v. Stevenson, 172 Colo. 379, 473 P.2d 720 (1970); Stewart v. Industrial Commission, 428 P.2d 367 (1967).
In Stewart v. Industrial Commission, supra, the claimant was injured while working for an uninsured subcontractor. The court determined the insured owners of the real property where the work was performed were the claimant's statutory employers. The court also held that the statutory requirement to notify the "employer" within 2 days of the date of the injury did not require the claimant to give notice to the landowners. Rather, the court held that actual notice to the uninsured subcontractor was sufficient. The court reasoned that it was "not incumbent upon claimant to assume from the beginning that the landowners had failed to fulfill their statutory duty to insure the job themselves or require the [subcontractor] to do so." Rather, the court concluded that it was only when the subcontractor's lack of workers' compensation insurance was demonstrated that the landowner's statutory liability came into effect, and therefore, that they were entitled to notice.
We are persuaded by Stewart that the General Assembly did not intend to place the burden on the injured employee to know whether the subcontractor is insured for purposes of determining the legal identity of the employer which has the right to select the treating physician. Consequently, we conclude that Rowland's failure to tender the services of a physician at the time the claimant notified Rowland of the injury, constituted a waiver of the respondents' right to select the treating physician.
Further, in a letter dated February 13, 2001, the claimant's attorney advised the respondents that the claimant was treating with Dr. Edgar. The letter also notified the respondents that if they didn't want the claimant to treat with Dr. Edgar, they must designate a treating physician within 10 days of the date of the letter. The respondents did not designate a new provider within 10 days. Under these circumstances, the ALJ could reasonably infer that the respondents gave the claimant their implied permission to proceed with Dr. Edgar and his referrals. See Greager v. Industrial Commission, supra; Brickell v. Business Machines, Inc., 817 P.2d 536, 539 (Colo.App. 1991) (respondents acquiesced in a claimant's "change of physician when, after an initial course of chiropractic treatments, the claimant determined that he required medical care").
Moreover, we reject the respondents' contention that they were not required to select a provider until they had an adequate opportunity to investigate the merits of the claim. The respondents' argument is inconsistent with the duty to designate a physician upon notice of a "potential" compensation claim. In fact, the right to control the course of medical treatment by selecting an authorized provider is separate from whether the respondents deny liability for the injury. See Yeck v. Industrial Claim Appeals Office, 966 P.2d 228 (Colo.App. 1999).
We also note that § 8-43-404(5)(a) establishes two mechanisms by which the claimant may obtain permission to change authorized treating physicians. The first method provides that :
"Upon written request to the insurance carrier or employer's authorized representative if self-insured, the employee may procure written permission to have a personal physician or chiropractor attend said employee. If such permission is neither granted nor refused within twenty days, the employer or insurance carrier shall be deemed to have waived any objection thereto."
The February 13 letter from the claimant's attorney notified the respondents that the claimant was receiving chiropractic treatment from Dr. Edgar and requested an evaluation and treatment from a "medical or osteopathic doctor." The respondents did not respond to the February 13 letter within 20 days. Under these circumstances the ALJ could reasonably infer that the respondents waived any objection to the claimant's change of physicians to Dr. Edgar and his referrals for further evaluation and treatment. Consequently, the ALJ did not err in finding that Dr. Redd, Dr. Edgar and Dr. Hehmann are authorized treating physicians.
We note the respondents do not dispute the ALJ's order which erroneously held Rowland jointly and severally liable for the claimant's injury and Rowland did not file a petition to review the ALJ's order. Because the error insures to the benefit of the respondents, we shall not address it on review. See Herriott v. Stevenson, 172 Colo. 379, 473 P.2d 720 (1970).
IT IS THEREFORE ORDERED that the ALJ's order dated July 13, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Robert M. SocolofskyNOTICE
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, within twenty (20) days after the date this Order is mailed, pursuant to § 8-43-301(10) and § 8-43-307, C.R.S. 2001. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed January 7, 2002 to the following parties:
Jack Robins, 6141 Meadowlark Ln., Montrose, CO 81401
Randall Rowland d/b/a Brakkaf Construction, 829 N. 7th, Montrose, CO 81401
Donlan Construction, Inc., 7121 Western Ave., Buena Park, CA 90620-1828
Michael McKenna, Sierra Insurance Company, 5575 DTC Pkwy., #335, P. O. Box 6597, Englewood, CO 80155-6597
American Family Mutual Insurance, P. O. Box 3228, Englewood, CO 80155
Thomas W. Blake, Esq., 415 Brach Dr., Grand Junction, CO 81503 (For Claimant)
Keith E. Mottram, Esq., 1200 17th St., #1700, Denver, CO 80202 (For Respondents Donlan Construction, Inc. and Sierra Insurance Company)
BY: A. Pendroy