IN THE MATTER OF THE CLAIM OF GEORGE ABBOTT, Claimant, v. SANGRE DE CRISTO HOSPICE, Employer, and PHARMACISTS MUTUAL INSURANCE COMPANY, Insurer, Respondents.

W.C. No. 4-525-702Industrial Claim Appeals Office.
December 23, 2002

ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which determined the claimant was an independent contractor when he suffered work-related injuries, and therefore, denied the claim for workers’ compensation benefits. We set aside the order and remand for the entry of a new order.

The claimant worked as an employee of the Sangre de Cristo Hospice (Hospice) from 1991 to June 1998, when he retired. The claimant returned as a temporary employee from January 1999 to February 28, 1999. When the temporary employment ended, the claimant continued to perform occasional maintenance jobs for Hospice. The claimant suffered injuries on December 3, 2001, when he fell from a ladder while repairing a light fixture for Hospice.

Section 8-40-202(2)(a), C.R.S. 2002, provides:

“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.” (Emphasis added).

Here, it s undisputed the claimant was performing services for Hospice in exchange for a wage on December 3, 2001. Consequently, the burden shifted to the respondents to prove the claimant was an independent contractor.

Section 8-40-202(2)(b)(II), C.R.S. 2002, provides that independence is established by proof the person for whom services are performed does not satisfy the nine factors listed in subsection 8-40-202(2)(b)(II)(A) through (I). Furthermore, to be “customarily engaged in an independent business,” the worker must “actually and customarily provide similar services to others at the same time he or she works for the putative employer.” Carpet Exchange of Denver, Inc. v. Industrial Claim Appeals Office, 859 P.2d 278 (Colo.App. 1993). The purpose of this test is to protect the security of workers who receive substantially all of their earnings from one employment. Barge v. Industrial Claim Appeals Office, 905 P.2d 25 (Colo.App. 1995).

On conflicting evidence the ALJ determined the claimant was engaged in an independent business and was free from the control and direction of Hospice. (Discussion and Conclusions of Law). Therefore, the ALJ determined the claimant’s injury was not compensable.

On review, the claimant contends, inter alia, that the record is insufficient to support a finding that he was customarily engaged in an independent business. We conclude the ALJ’s findings of fact are insufficient to permit appellate review of the claimant’s contention.

In support of her determination that the claimant was free from Hospice’s control and direction, the ALJ relied on evidence the claimant was not required to work exclusively for Hospice, Hospice did not establish a quality standard or dictate the time of performance, the business operations of the parties were not combined and Hospice provided no training, few tools and no benefits. (Finding of Fact 8). However, the ALJ did not make any specific findings of fact concerning whether the claimant was actually and customarily providing similar services to others at the time of the industrial injury.

In reaching this conclusion we recognize the ALJ’s finding that the claimant “still occasionally does small repair jobs for pay, but usually just works for friends and relatives whom he does not charge.” (Emphasis added). However, we are unable to ascertain whether this finding reflects the ALJ’s determination that the claimant was customarily engaged in an independent business at the time of the injuries. Accordingly, the ALJ’s findings are insufficient to ascertain whether the ALJ erred in finding the respondents sustained their burden to prove the claimant was an independent contractor.

On remand, the ALJ shall issue specific findings of fact concerning whether the respondents proved the claimant was customarily engaged in an independent business as of December 3, 2001. The ALJ shall then enter a new order concerning whether respondents’ sustained their burden to prove the claimant was an independent contractor.

IT IS THEREFORE ORDERED that the ALJ’s order dated June 11, 2002, is set aside and the matter is remanded to the ALJ for the entry of a new order consistent with the views expressed herein.

INDUSTRIAL CLAIM APPEALS PANEL

______________________________ Kathy E. Dean
______________________________ Dona Halsey

Copies of this decision were mailed December 23, 2002 to the following parties:

George Abbott, 2014 Lynwood Ln., Pueblo, CO 81005-2710

Mike Gruber, Sangre de Cristo Hospice, 704 Elmhurst Pl., Pueblo, CO 81004

Todd TerHark, Pharmacists Mutual Insurance Company, P. O Box 370, Algona, IA 50511

Marti Meyers, Adjuster, Crawford Company, 9200 E. Panorama Circle, #160, P. O. Box 6502, Englewood, CO 80155

Charles J. Malouff, Esq., 1225 N. Grand, #206, Pueblo, CO 81003 (For Claimant)

Richard M. Lamphere, Esq., 111 S. Tejon St., #700, Colorado Springs, CO 80903 (For Respondents)

BY: A. Hurtado