IN THE MATTER OF THE CLAIM OF LUIS RODRIGUEZ, Claimant, v. LOGIGROUP, LLC, Putative Employer, and NON-INSURED, Respondent.

W.C. No. 4-793-962.Industrial Claim Appeals Office.
June 24, 2010.

FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Henk (ALJ) dated January 8, 2010, that determined the claimant was an employee of the respondent. We affirm.

On May 10, 2009, the claimant was driving a truck owned by the employer. While driving the truck the claimant sustained serious injuries when he was involved in an accident. The truck the claimant was driving had just been worked on and the claimant had picked the truck up from a repair shop before leaving for a trip. The claimant reported mechanical problems with the truck to the owner of the respondent the day before the accident happened. According to the claimant, the brakes in his truck failed at the time of the accident.

The ALJ concluded that the claimant was an employee of the respondent because he was not free from control and direction in the performance of services for the respondent, was not engaged in an independent trade or business at the time of his injury and that the respondent combined its business operation with the service provided by its drivers. The ALJ awarded temporary total disability and medical benefits.

The respondent appeals contending that the ALJ erred in determining that the claimant was an employee of the respondent by failing to credit certain undisputed testimony. We are not persuaded that the ALJ committed reversible error.

Section 8-41-301 C.R.S. requires that in order to recover workers’ compensation benefits the claimant must be the respondent’s “employee” at the time of the injuries. Section 8-40-202(2)(a), C.R.S, provides:

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Notwithstanding any other provision of this section, any individual who performs services for pay for another shall be deemed to be an employee, irrespective of whether the common-law relationship of master and servant exists, 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.

I.
The respondent’s appeal is primarily if not exclusively directed toward establishing that the claimant was free from control and direction in the performance of the service for the putative employer. However, § 8-41-301 clearly provides that a necessary element to establish an individual as an independent contractor is that such individual is customarily engaged in an independent trade, occupation, profession or business related to the service performed. Therefore, in our view, the ALJ properly applied the statute to require both independence and the engagement in an independent business.

Section § 8-40-202(2)(a) creates a “balancing test” to overcome the presumption of employment contained in and establish independent contractor status. Nelson v. Industrial Claim Appeals Office, 981 P.2d 210 (Colo. App. 1998). Once the claimant establishes that he performed services for the respondent in exchange for a wage, the burden shifts to the putative employer to prove the claimant was not an employee by showing the claimant was free from control and customarily engaged in an independent trade. The question of whether the putative 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). Furthermore, this standard requires that we defer to the ALJ’s credibility determinations, as well as her assessment of the sufficiency and probative value of the evidence.

Here the ALJ found that the claimant was not engaged in an independent trade or business at the time of his injury. This is supported by the testimony of the claimant who stated that he was not allowed to work for anyone else and would be fired if he did so.

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Tr. at 29, 58-59, 61-62. The claimant testified that he couldn’t drive more than 70 hours a week and that he would not have had time to work for any one else. Tr. at 62, 109. There was disputed evidence on this issue presented by the respondent but the ALJ determined that it was more probably true than not that the claimant was required to haul the loads given to him by the respondent absent a medical or other emergency excuse. The ALJ credited the evidence presented by the claimant and in our view this constituted substantial evidence. Therefore, we are bound by that determination. Section 8-43-301(8). In our view, this determination by the ALJ alone was sufficient to find the respondent liable for benefits. However, the ALJ made additional determinations.

II.
The ALJ also determined that the claimant was an employee of the respondent because he was not free from control and direction in the performance of services for the respondent. The putative employer may establish independence by proving the presence of some or all of the nine criteria set forth in § 8-40-202(2)(b)(II), C.R.S Nelson v. Industrial Claim Appeals Office, supra.

The 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.

The statute does not establish any precise number or combination of factors, which is decisive in determining whether the claimant is an employee or an independent contractor. Rapouchova v. Frankie’s Installation, W. C. No. 4-630-15(August 17, 2005). Rather, the ALJ determines as a matter of fact whether or not particular factors are present, and ultimately, whether the claimant is an employee or independent contractor based on the totality of the evidence concerning the statutory factors. Nelson v. Industrial Claim Appeals Office, supra.

Whether the criteria in § 8-40-202(2)(b)(II) are present in any particular case is a factual determination for resolution by the ALJ. Nelson v. Industrial Claim Appeals Office, supra. As noted above if an issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8).

The ALJ considered the totality of the circumstances and concluded that the

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employer had not established that the claimant was an independent contractor at the time of the accident. The ALJ made the following findings of fact. The respondent imposed very specific non-negotiable deadlines on its drivers and there was ample evidence that the respondent exercised control over the routes its drivers took to both pick up and deliver goods. Tr. at 58-60. This type of control over the manner and timing of the trips suggested an employment relationship. The claimant was paid thirty-three cents a mile and was not provided with training suggesting an independent contractor relationship. Tr. at 56-58. However, the claimant was paid in his own name, which suggests an employment relationship. Tr. at 30. With the exception of food and clothing, the employer provided the claimant with everything he needed to be a driver, which suggests an employment relationship. Tr at 27-28. In our view, the ALJ’s findings of fact are supported by substantial evidence in the record. The factual findings above support the ALJ’s conclusion that under the totality of the circumstances, there was an employment relationship rather than independent contractor status. That the ALJ might have reached a contrary conclusion is immaterial on review. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo. App. 1999).

III.
The ALJ found that the respondent was subject to the provision of § 8-40-301 C.R.S. as a common carrier. The ALJ relied on USF Distribution Services, Inc. v. Industrial Claim Appeals Office 111 P.3d 529, (Colo. App. 2004) regarding the issue of whether the respondent’s failure to secure complying coverage changed the claimant’s status from that of an independent contractor to that of an employee. The ALJ concluded that by operation of law that employee status was conferred upon the claimant. The respondent, on appeal, has not challenged this determination. We perceive no reversible error in this determination. In our view, this determination on its own constitutes a sufficient ground for affirming the ALJ’s conclusion that the claimant was an employee.

IT IS THEREFORE ORDERED that the ALJ’s order issued January 8, 2010 is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ John D. Baird

______________________________ Thomas Schrant

LUIS RODRIGUEZ, GREELEY, CO, (Claimant).

FOGEL, KEATING, WAGNER, POLIDORI SHAFNER, Attn: LAURENCE J, FREE, ESQ., DENVER, CO, (For Claimant).

LAW OFFICES OF DAVID T. MCCALL, LLC, Attn: DAVID T. MCCALL, ESQ., (For Respondents).

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