W.C. No. 4-489-774Industrial Claim Appeals Office.
April 16, 2002
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Wheelock (ALJ) which determined the claimant was an independent contractor when he suffered a work-related injury and, therefore, the ALJ denied and dismissed the claim for workers’ compensation. We set aside the order and remand for entry of a new order.
On May 20, 2001, the claimant was injured during a motor vehicle accident while working as a door to door salesman of meat products for W.Y.B., doing business as What’s Your Beef. The respondents denied liability.
The ALJ found the claimant signed an independent contractor agreement with W.Y.B. which was insufficient to create a rebuttable presumption of an independent contractor relationship between the parties. However, based on the nine criteria in § 8-40-202(2)(b)(II), C.R.S. 2001, the ALJ determined the claimant engaged in an independent occupation or business and was free from control and direction in the performance of service to W.Y.B.
In so doing, the ALJ determined that, “Pursuant to § 8-40-202(2)(d) the burden of proving the existence of an employer-employee relationship for the purposes of receiving workers’ compensation benefits rests with the Claimant when the defense of independent contractor has been raised by Respondents.” Further, the ALJ determined the “[C]laimant has failed to meet his burden of proof to establish that he was an employee of W.Y.B.” Therefore, the ALJ denied and dismissed the claim for workers’ compensation.
On appeal, the claimant contends the ALJ misapplied the burden of proof. We agree and, therefore, remand the matter for a new order. Section 8-43-301(8), C.R.S. 2001.
Section 8-40-202(2)(a), C.R.S. 2001, provides that
“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.”
The claimant had the initial burden to prove he was paid for services he performed for W.Y.B. However, once the claimant established this proof, the burden shifted to the respondents to rebut the existence of an employee/employer relationship by proof the claimant was free from control and customarily engaged in an independent trade. Frank C. Klein v. Colorado Compensation Insurance Authority, 850 P.2d 323 (Colo.App. 1993).
The, ALJ’s interpretation of § 8-40-202(2)(d) suggests she failed to assign the burden to prove the claimant was an independent contractor to the respondents. In particular, the ALJ’s determination seems to confuse the claimant’s initial burden to show he performed services for pay with the respondents’ burden to rebut the claimant’s proof he was an “employee” by showing an independent contractor relationship. Furthermore, we disagree with the respondents that the remainder of the ALJ’s order reflects the ALJ’s proper application of the burden of proof.
We cannot ascertain if the outcome would have been the same had the ALJ assigned the burden of establishing an independent contractor relationship to the respondents instead of the claimant. Therefore, the matter shall be remanded for the entry of a new order which reflects the correct application of the parties’ respective burdens of proof.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 7, 2001, is set aside and the matter is remanded for the entry of a new order consistent with the views expressed herein.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed April 16, 2002 to the following parties:
David Almanza, 824 Bennett Ave., Colorado Springs, CO 80909
John Gluckin, W.Y.B. d/b/a What’s Your Beef, 4955 Miller St., #109, Wheat Ridge, CO 80033
Michael J. Steiner, Esq., Colorado Compensation Insurance Authority d/b/a Pinnacol Assurance — Interagency Mail (For Respondents)
Gordon J. Heuser, Esq., 625 N. Cascade, #300, Colorado Springs, CO 80903 (For Claimant)
Richard M. Lamphere, Esq., 111 S. Tejon, #700, Colorado Springs, CO 80903
BY: A, Hurtado