IN THE MATTER OF THE CLAIM OF PERCY HAMILTON, Claimant, v. DUAL DOC FARMS, GLEN ROUSE, DVM, AND PEG WYKES, DVM, and Employer, NON-INSURED, Insurer, Respondents.

W.C. No. 4-790-767.Industrial Claim Appeals Office.
January 25, 2011.

FINAL ORDER
The respondents seek review of an order of Administrative Law Judge Harr (ALJ) dated September 17, 2010, that found the claim compensable and ordered the respondents to pay certain benefits. We affirm.

Glen Rouse, DVM (Dr. Rouse) and Peg Wykes, DVM (Dr. Wykes) are doctors of veterinary medicine who also own parcels of land near Greeley, where they perform farming operations. On November 10, 2006 the claimant sustained injuries in a fall from atop hay bales stacked on a trailer he was loading on Dual Doc Farms owned by Dr. Rouse and Dr. Wykes.

The ALJ found that the claimant was not working as an independent contractor at the time of his industrial injury. The ALJ ordered Dr. Rouse and Dr. Wykes to pay for treatment provided the claimant at the North Colorado Medical Center and certain temporary disability benefits. The respondents bring this appeal.

I.
The respondents argue that the ALJ erroneously determined the claimant to be an employee through the statutory criteria in § 8-40-202, C.R.S. 2009. The respondents argue that given the totality of the circumstances the ALJ should have concluded that the claimant was an independent contractor. We are not persuaded that the ALJ committed reversible error.

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Section 8-40-202(2)(a), C.R.S., provides that “any individual who performs services for pay for another shall be deemed to be an employee” unless the person 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.” The putative employer may establish that the claimant was free from direction and control and engaged in an independent business or trade by proving the presence of some or all of the nine criteria set forth in § 8-40-202(2)(b)(II), C.R.S. See also Nelson v. Industrial Claim Appeals Office, 981 P.2d 210 (Colo. App. 1998).

The nine factors set forth in § 8-40-202(2)(b)(II) indicating that an individual is not an independent contractor include the individual being paid a salary or hourly rate instead of a fixed contract rate, and being paid individually rather than under a trade or business name. Conversely, independence may be shown if the person for whom the services are performed provides no more than minimal training to the claimant, does not dictate the time of performance, does not establish a quality standard for the claimant’s work, does not combine its business with the business of the claimant, does not require the claimant to work exclusively for a single person or company, and is not able to terminate the claimant’s employment without liability.

This statute creates a “balancing test” to overcome the presumption of employment contained in “free from control and direction in the performance of the service,) and establish independent contractor status. Nelson v. Industrial Claim Appeals Office, supra. The question of whether the employer has presented sufficient proof to overcome the presumption is one of fact for the ALJ. Accordingly, we are bound by the ALJ’s determinations if supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S.; F.R. Orr v. Rinta, 717 P.2d 965 (Colo. App. 1985). This standard of review requires that we view the record in the light most favorable to the prevailing party, and accept the ALJ’s resolution of inconsistencies and conflicts in 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 respondents contend that the overwhelming weight of the evidence supports the conclusion that the claimant was free from control and direction in the performance of the service. The respondents concede that not all of the nine criteria set forth in § 8-40-202(2)(b)(II) are present here but argue that given the totality of the circumstances the ALJ should have determined that the claimant was an independent contractor.

The ALJ made extensive findings of fact on the issue of whether the claimant was an independent contractor. We recite some of those findings in the following. The

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claimant was not in the business of providing farm management services for others. The claimant was a full-time employee of the City of Eaton. In his spare time, the claimant provided irrigation services, planting/harvesting, and farm labor for Dr. Rouse. The claimant provided labor to clean a ditch for another family for $800. At the time of his injury the claimant provided farm labor — loading and stacking bales of hay — for Dr. Rouse. Dr. Rouse and the claimant developed a routine course of dealing with each other over the years; there was no written contract establishing their business relationship. The claimant was paid $1,500 per month over a 12 month-period to manage operations of the farm. Although Dr. Rouse paid the claimant throughout the year, the claimant performed the majority of his work during the growing and harvesting season (April through September). Dr. Rouse paid the claimant a monthly salary for general employment-type services, and not payment for any specific task, duty, or job defined by contract. There was no written contract or time for performance of contract duties entered into between Dr. Rouse and the claimant. Dr. Rouse did not supervise the claimant on a daily basis. In January of each year, Dr. Rouse met with the claimant to plan crops for planting in the various fields. Dr. Rouse neither supervised the claimant’s time nor set deadlines for tasks. Dr. Rouse and the claimant typically communicated by telephone when they needed to talk. There was no contract period for performance of defined work for the claimant to perform. The claimant instead performed various tasks in furtherance of Dr. Rouses’ farming business. Dr. Rouse provided the equipment for bailing hay, including a winnower/swather, two tractors, rakes, large and small balers, and tarps. For irrigation of the farms Dr. Rouse provided an elevated sprinkler system. Dr. Rouse provided weed spray for the ditch banks. The claimant provided his own ladder and pitchfork. Except for the ladder and pitchfork, Dr. Rouse provided tools, equipment, fuel and twine for the farming operations. The claimant never submitted a bill for the work he performed on the farm. Dr. Rouse paid the claimant by check made out personally to the claimant, and not payable to a business entity.

On balance, the ALJ found these factors failed to show that the claimant was free from control or direction of Dr. Rouse in performing his farm work or that the claimant was customarily engaged in a business of providing farm management. As we understand the respondents’ argument they do not contend that any specific factual finding is not supported by substantial evidence and plausible inferences drawn from the record. Section 8-43-301(8), C.R.S. Rather, the respondents argue that ALJ’s conclusion that the claimant was not free from direction and control was in error.

We note that the claimant was paid by a check directly to him and not made out to a business entity. The claimant was paid a monthly salary for general employment-type services and not payment for a specific task, defined by a contract. In addition there was not written contract or time for performance of contract duties entered into between the

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parties. We are not persuaded that the facts compel the conclusions that the claimant was free from control or direction in performing his farm work.

Moreover we are not persuaded that the ALJ erred in determining under the second prong of the independent contractor test that the claimant was an “employee” of the respondents. The second prong of § 8-40-202(2)(a) for determining whether the claimant should be deemed to be an “employee” is whether such individual is customarily engaged in an independent trade, occupation, profession, or business related to the service performed. A necessary element to establish that an individual is an independent contractor is that such individual is customarily engaged in an independent trade, occupation, profession or business related to the service performed. Section 8-40-202(2)(a); Allen v. America’s Best Carpet Cleaning Service, W.C. No. 4-776-542 (December 01, 2009).

The respondents argue that the evidence shows that the claimant was customarily engaged in an independent trade or business, namely, the business of farming. Further the respondents contend the claimant’s testimony established that he occasionally helped his son, had a working farm and worked for a neighbor as well as Dr. Rouse. The respondents insist that the ALJ made erroneous findings with regard to the second prong under § 8-40-202(2)(a). We disagree.

The ALJ determined that Dr. Rouse failed to show it more probably true than not that the claimant was engaged in an independent trade or business at the time of his injury on November 10, 2006. The ALJ concluded that Dr. Rouse failed to prove by a preponderance of the evidence that the claimant was working as an independent contractor at the time of his work-related injury.

The ALJ found that claimant was not in the business of providing farm management services for others. The claimant was a full-time employee of the City of Eaton. In his spare time, the claimant provided irrigation services, planting/harvesting, and farm labor for Dr. Rouse. The claimant provided labor to clean a ditch for another family for $800. At the time of his injury the claimant was provided farm labor loading and stacking bales of hay for Dr. Rouse.

We are not persuaded that the claimant was customarily engaged in an independent trade or business. The respondents argue that the claimant, at the time of his injury, was working full time for the City of Eaton. However, the record demonstrates that this work was running a sweeper for the streets division of the City of Eaton and not cutting or bailing hay. Tr. at 13. The ALJ did note that the claimant provided labor to clean a ditch for another family but that the claimant’s income from

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farm management or farm labor was substantially dependent upon his employment relationship with Dr. Rouse, and not dependent upon providing those services for others.

The statutory requirement that the worker be “customarily engaged” in an independent trade or business is designed to assure that a worker, whose income is almost wholly dependent upon continued employment by a single employer, is protected from the vagaries of involuntary unemployment, irrespective of the worker’s status as a “servant” or as an “independent contractor” under the common law. See Long View Systems Corp. USA v. Industrial Claim Appeals Office 197 P.3d 295 (Colo. App. 2008). Carpet Exch. of Denver, Inc. v. Industrial Claim Appeals Office, 859 P.2d 278, 282 (Colo. App. 1993). Therefore, in our view the ALJ correctly stated the law relating to whether a claimant is customarily engaged in an independent trade, occupation, profession, or business. However, the essential issue was whether the claimant was customarily engaged in an independent trade or business of farming and the ALJ found that he was not. Because there is substantial evidence in the record supporting this determination we are bound by it.

II.
The respondent, Dr. Wykes, argues that the ALJ erroneously concluded that the claimant was an employee of all the named respondents and that she should have been dismissed from the case. The respondent, Dr. Wykes, maintains that there is no evidence presented that would show that she had any involvement in the day to day operations of Dual Doc Farms or any interactions with the claimant. Dr. Wykes maintains that the mere fact she is a landowner is irrelevant to the issue of whether she was an employer. We disagree.

The ALJ made the following relevant findings of fact. Dr. Rouse and his wife, Dr. Wykes, owned parcels of land near Greeley where they perform farming operations. Dr. Rouse paid the claimant $1,500 per month to manage operations of the farm. The name of the farm was Dual Doc Farms. Dr. Rouse paid the claimant by personal check. The ALJ concluded that the claimant was not working as an independent contractor at the time of his work-related injury. The ALJ ordered Dr. Rouse and Dr. Wykes to pay for certain medical treatment and for temporary disability benefits.

Here, the claimant was a person in the service of the farm under a contract of hire. Section 8-40-202, C.R.S. The farm was owned by Dr. Rouse and Dr. Wykes. While it appears that Dr. Rouse was the active member in contact with the claimant on a regular basis, this does not relive Dr. Wykes of liability under the Workers Compensation Act.

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III.
The respondents argue that their procedural due process rights were abridged by the ALJ’s Corrected Order of September 20, 2010. The respondents contend that they were precluded from filing a response to the Motion for Corrected Order. The respondents argue that the Corrected Order was issued 11 days after the claimant filed his Motion for Corrected Order, thus precluding the respondents from filing their response.

The respondents filed a Motion for Extension of Time to respond to the corrected order on September 23, 2010, which was denied as moot on September 24, 2010. In the Corrected Order the ALJ concluded that Dr. Wykes was also liable to pay benefits to the claimant as well as requiring all the respondents to post an appeal bond.

We are not persuaded that the actions by the ALJ abridged procedural due process rights. A party’s right to procedural due process is met if the party is provided with notice and an opportunity to be heard. Pub. Utils. Comm’n v. Colo. Motorway, Inc., 165 Colo. 1, 10, 437 P.2d 44, 48 (1968). The essence of procedural due process is fundamental fairness City County of Denver v. Eggert, 647 P.2d 216, 224 (Colo. 1982).

It is provided in Office of Administrative Courts’ Rule of Procedure (OACRP) 16(E), 1 Code Colo. Reg. 104-3 at 7, that a response or an objection to a motion must be filed within 10 days of the date of mailing or delivery of the motion. Here, by the respondents’ own admission the Corrected Order was issued 11 days after the claimant filed his Motion for Corrected Order. The respondents’ Motion for Extension of Time to Respond to the Corrected Order was filed after the passage of the 10 day period for filing an objection to the claimant’s Motion for Corrected Order. The respondents were afforded, like all other parities under OACRP 16(E), a 10-day period to be heard and they failed to timely act within that time period. Therefore we find no due process violation.

IT IS THEREFORE ORDERED that the ALJ’s order dated September 17, 2010 is affirmed.

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INDUSTRIAL CLAIM APPEALS PANEL

____________________________________

John D. Baird

____________________________________

Thomas Schrant

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GLEN ROUSE, DVM, AND PEG WYKES, DVM, Attn: GLEN ROUSE, D.V.M. PEG WYKES, D.V.M., C/O: DUAL DOC FARMS, 189, SEDALIA, CO (Employer), SAWAYA, ROSE KAPLAN, PC, Attn: BRITTON MORRELL, ESQ., GREELEY, CO, (For Claimant).

NEMECHEK MAGRUDER, LLC, Attn: TIMOTHY L. NEMECHEK, ESQ., DENVER, CO, (For Respondents).

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