Opinion
W.C. No. 4-439-165
December 6, 2000
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which determined the claimant is excluded from the provisions of the Workers' Compensation Act (Act) and, therefore denied and dismissed the claim for workers' compensation. We affirm.
The claimant is a fifty percent owner and bar manager of the Fly Me to the Moon Saloon. The claimant sustained a right inguinal hernia injury on August 16, 1999, while working as bar manager.
Based upon the evidence presented at a hearing on July 19, 2000, the ALJ found the sustained the hernia injury in his employment as bar manager. However, the ALJ found that as a corporate officer, the claimant had executed an election to reject workers' compensation coverage. Therefore, the ALJ determined the claimant is exempt from the definition of "employee" under the Act.
The claimant argued that he did not did not execute any election, and even if he did, he did not intend to exempt himself for coverage while performing the duties of bar manager. The ALJ rejected these arguments. In support, the ALJ found there was no evidence the claimant notified the respondent-insurer that he intended to have workers' compensation coverage for his work as bar manager. Furthermore, the ALJ found the documentary evidence failed to support the claimant's assertion that the saloon's workers' compensation premium rate included his wages as bar manager.
The claimant petitioned for review of the ALJ's order in a letter dated September 8, 2000. See Miller v. Industrial Commission, 28 Colo. App. 462, 474 P.2d 177 (1970); Rendon v. United Airlines, 881 P.2d 482 (Colo.App. 1994) (mailing cover letter to ALJ constituted substantial compliance with requirement for certificate of mailing of petition to review to ALJ). However, the claimant did not allege any specific errors. Further, the claimant has not filed a brief in support of the petition to review. Consequently, the effectiveness of our review is limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).
Our authority to review the ALJ's order is defined in § 8-43-301(8), C.R.S. 2000. That statute precludes us from disturbing the ALJ's order unless the ALJ's findings of fact are insufficient to permit appellate review, the ALJ has not resolved conflicts in the evidence, the record does not support the ALJ's findings, the findings do not support the order, or the order is not supported by the applicable law.
Section 8-41-202(1), C.R.S. 2000, provides that an officer of a corporation may elect to reject the provisions of the Act. Subsection 8-41-202(2) states that where an election has been made it shall continue "in effect so long as the corporation's or company's insurance policy is in effect or until said officer or member, by written notice to the insurer, revokes the election." Subsection 8-41-202(4)(a) defines "corporate officer" as the "chairman of the board, president, vice-president, secretary or treasurer who is an owner of at least ten percent of the stock of the corporation."
We have reviewed the ALJ's findings of fact and the order. The findings are sufficient to permit review of the basis for the order, and it is clear the ALJ resolved the pertinent conflicts based upon his credibility determinations. See Riddle v. Ampex Corp., 839 P.2d 489 (Colo.App. 1992); Regional Transportation District v. Jackson, 805 P.2d 1190 (Colo.App. 1991).
The claimant has not provided a transcript of the hearing. Under these circumstances, we must presume there was substantial evidence to support the ALJ's findings of fact. See Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). The ALJ's finding the claimant exercised his right under § 8-41-202 to exclude himself from the provisions of the Act supports the conclusion that the respondents are not liable for the claimant's inguinal hernia. See Kelly v. Mile Hi Single Ply, Inc., 890 P.2d 1161 (Colo. 1995); Anderson v. A M Site Services Inc., W.C. No. 4-272-301 (November 27, 1996). Therefore, the order is consistent with the applicable law, and there was no error in the denial of the claim.
IT IS THEREFORE ORDERED that the ALJ's order dated August 22, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ Kathy E. Dean
____________________________________ Bill WhitacreNOTICE
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. 2000. 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 December 6, 2000 to the following parties:
Sam M. Lichter, P. O. Box 1977, Telluride, CO 81435
Fly Me to the Moon Saloon, 132 E. Colorado, P. O. Box 1977, Telluride, CO 81435
Laurie A. Schoder, Esq., Pinnacol Assurance — Interagency Mail
BY: A. Pendroy