IN THE MATTER OF THE CLAIM OF Abderraham AFTAH, Claimant, v. CONNEX TRANSIT, Employer, and Travelers Insurance Co., Insurer, Respondents.

W.C. No. 4-660-595.Industrial Claim Appeals Office.
November 28, 2006.

FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) dated May 25, 2006 that found the claimant to be an independent contractor and denied his claim for benefits. We affirm.

The record does not include a brief on behalf of the claimant in support of his petition, but the claimant is not required to file a brief in order to obtain appellate review. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986).

The ALJ made findings of fact that are summarized as follows. The claimant entered into an agreement with Connex Transit whereby he owned and drove a taxicab. The claimant had previous experience as an independent contractor driving a cab at Metro Cab and a shuttle van at Super Shuttle. The claimant speaks and writes in English and knew or should have known what it means to work as an independent contractor. Pursuant to the agreement, Connex modified the claimant’s vehicle and leased to the claimant dispatch services, radio equipment, and signs for his car. The claimant was obligated to pay Connex weekly fees. Connex paid no employment taxes and provided drivers such as the claimant with a brief orientation. The claimant was not required to drive exclusively for Connex, Connex did not supervise the claimant’s provision of driving se rvices, and paid no money to the claimant for his driving services. Connex did not combine its business with those of the owner-drivers. In addition, the claimant set his own work hours and types of fares.

Based upon his factual findings, the ALJ concluded that the claimant was an independent contractor rather than an employee. The ALJ determined that the balance of factors in § 8-40-202(2)(b)(II), C.R.S. 2006, established that the claimant was an independent contractor at the time of his injury. Therefore, the ALJ dismissed the claim.

On appeal, the claimant contends that the ALJ erred in concluding that he was an independent contractor rather than a statutory employee. We are not persuaded.

Pursuant to § 8-40-202(2)(a), C.R.S. 2006, “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). See also Nelson v. Industrial Claim Appeals Office, 981 P.2d 210 (Colo.App. 1998).

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.

This statute creates a “balancing test” to overcome the presumption of employment contained in § 8-40-202(2)(a) 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. 2006; 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). However, the claimant has failed to provide a transcript of the hearing and, therefore, we must presume that the ALJ’s factual findings are supported by the record. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988).

The ALJ considered the relevant factors and entered factual findings supporting his conclusion that, on balance, the claimant was an independent contractor. We are not at liberty to disturb these findings. The findings also support the ALJ’s conclusion that under the totality of the circumstances, there was an independent contractor status rather than an employment relationship.

IT IS THEREFORE ORDERED that the ALJ’s order dated May 25, 2006, is affirmed.

INDUSTRIAL CLAIM APPEALS PANEL

____________________________________ John D. Baird

____________________________________ Thomas Schrant

Abderrhman Aftah, Parker, CO, Connex Transit c/o Connex North America, Inc., Baltimore, MD, Travelers Indemnity Co., Denver, CO, Blackman
Levine, LLC, Lynda S. Newbold, Esq., Denver, CO, (For Respondent).