W.C. No. 4-442-464Industrial Claim Appeals Office.
February 14, 2001
FINAL ORDER
The pro se claimant seeks review of an order of Administrative Law Judge Martinez (ALJ) which denied and dismissed the claim for workers’ compensation benefits. We affirm.
On August 20, 1998, the claimant injured her left wrist while working for the respondent as a painter. The claimant was transported to St. Mary’s Hospital for emergency treatment. The respondent denied liability on grounds the claimant was employed as an independent contractor at the time of the injury.
On conflicting evidence the ALJ determined the claimant was not the respondent’s “employee” at the time of the injury and, therefore, the ALJ dismissed the claim. In support, the ALJ found the claimant was paid a daily rate of $75 for which no taxes were deducted, the respondent did not provide any training, the claimant was not subject to the respondent’s supervision or control, the claimant was not required to work exclusively for the respondent and the claimant supplied her own tools. The ALJ also found the claimant told the St. Mary’s Hospital emergency room attendant she was self-employed.
Relying on her testimony, the claimant contends the ALJ’s findings of fact are contrary to the record. Consequently, the claimant contends the ALJ erroneously denied the claim. We disagree.
Section 8-40-202(2)(a), C.R.S. 2000, provides that an individual “who performs services for pay for another shall be deemed to be an employee” unless the individual is:
“free from control and direction in the performance of the services, both under the contract for performance of services and in fact and such individual is customarily engaged in an independent trade, occupation, profession, or business related to the services performed.”
Section 8-40-102(2), C.R.S. 2000, states that evidence the individual performs services “exclusively or primarily” for one person or company shall not be conclusive that the individual is an “employee.” Section 8-40-102(2) also provides that the test for determining whether an individual is an employee shall be based on the nine criteria set forth in § 8-40-202(2)(b)(II), C.R.S. 2000, which test supersedes the common law. Under § 8-40-202(2)(b)(II), an individual is not an independent contractor if the individual is paid a salary or hourly rate instead of a fixed contract rate, and paid in her individual name and not a trade name. The other criteria to be considered include whether the person for whom the services are performed provides more than minimal training to the individual, provides tools or benefits, dictates the time of performance, establishes a quality standard for the individual’s work, can terminate the individual for reasons other than violation of the terms of the contract or failure to produce a result that meets the contract specifications; combines its business with the business of the individual, and requires the individual to work exclusively for one person or company. No one factor is dispositive. See Nelson v. Industrial Claim Appeals Office, 981 P.2d 210 (Colo.App. 1998).
The claimant bore the burden to prove she was the respondent’s “employee,” and the burden to prove the claimant was an independent contractor rested with the respondent. . Frank C. Klein v. Colorado Compensation Insurance Authority, 850 P.2d 323 (Colo.App. 1993). The question of whether the parties sustained their respective burdens of proof is a factual determination for the ALJ. Locke v. Longacre, 772 P.2d 685 (Colo.App. 1989); Weld County Kirby Co. v. Industrial Commission, 676 P.2d 1253 (Colo.App. 1983). Therefore, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. Under this standard, we must defer to the ALJ’s credibility determinations, his resolution of conflicts in the evidence and the plausible inferences which the ALJ drew from the record. Delta Drywall v. Industrial Claim Appeals Office, 868 P.2d 1155
(Colo.App. 1993).
We have reviewed the ALJ’s findings of fact and the record, including the transcript of the hearing on June 29, 2000. The claimant’s arguments notwithstanding, the ALJ’s pertinent findings are supported by substantial evidence and reasonable inferences drawn from the record. The ALJ resolved conflicts in the evidence by explicitly rejecting the claimant’s testimony that she was the respondent’s employee. See Levy v. Everson Plumbing Co., Inc., 171 Colo. 468, 468 P.2d 34 (1970) (ALJ is not required to credit the claimant’s testimony). Furthermore, the ALJ’s findings support the conclusion the claimant was working as an independent contractor at the time of the injury. Therefore, the ALJ did not err in denying the claim. Section 8-41-301(1)(b), C.R.S. 2000.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 24, 2000, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
NOTICE
This Order is final unless an action to modify or vacate this Order is commenced in the Colorado Court of Appeals, 2 East 14th Avenue, Denver, CO 80203, by filing a petition for review with the Court, within twenty (20) days after the date this Order is mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2000. The appealing party must serve a copy of the petition upon all other parties, including the Industrial Claim Appeals Office, which may be served by mail at 1515 Arapahoe, Tower 3, Suite 350, Denver, CO 80202.
Copies of this decision were mailed February 14, 2001 to the following parties:
Dena M. Bean, 1324 18 ½ Road, Fruita, CO 81521
Steve Roswell d/b/a Rembrandt Painting, 3220 Nolene Dr., Clifton, CO 81520-7423
Luke A. Brennan, Esq., P. O. Box 579, 123 N. 7th St., #130, Grand Junction, CO 81502 (For Respondent)
BY: A. Pendroy