W.C. No. 4-481-823Industrial Claim Appeals Office.
February 20, 2002
FINAL ORDER
Respondents Happy Motors, and its workers’ compensation insurer, Truck Insurance Exchange (collectively Truck Insurance respondents), seek review of an order of Administrative Law Judge Friend (ALJ) holding them liable for medical benefits. The Truck Insurance respondents contend the ALJ erred in determining the claimant was an employee of respondent Bertha Davis (Davis) rather than an independent contractor. We affirm.
The claimant entered into a written contract with Davis doing business as Air Care Transports. Davis contracted with automobile dealers to drive automobiles from the dealers’ lots to emission testing centers, then return the automobiles when the testing was complete. Davis was not insured for workers’ compensation.
On September 9, 2000, Davis and the claimant entered into a “Standard Agreement Form for Contract Labor.” Under this contract the claimant was to drive vehicles for Air Care Transports. The contract stated the claimant was an “independent contractor” and would be responsible for withholding taxes, social security tax, and workmans [sic] compensation insurance. The contract further provided the claimant could work her own hours, and was required to provide proof she was “doing contract labor for at least five other businesses and its services are conferred to the general public.” The ALJ found this contract does not comply with § 8-40-202(2)(b)(IV), C.R.S. 2001, because it does not provide in “bold-faced or underlined type” that the claimant, as an independent contractor, “is not entitled to workers’ compensation benefits.” Neither were the parties’ signatures notarized.
The ALJ further found that under the contract Davis would contact the claimant by telephone, and if the claimant accepted the delivery job she was expected to transport the vehicle on the day of the call. The claimant was paid a fixed “piece rate” of 7 dollars per car. No checks were made payable to the claimant through an independent trade or business name. Finally, the ALJ concluded that Davis “could terminate the contract any time without liability for anything other than the work claimant had already performed.” (Finding of Fact 8).
On September 21, 2000, Davis requested the claimant to transport a vehicle for respondent Happy Motors. Upon returning the vehicle to Happy Motors’ lot, the claimant was injured when the vehicle rolled backwards and struck her.
In light of these findings, the ALJ concluded the claimant was not free from control and direction in the performance of her services, nor was she customarily engaged in an independent trade or business related to the service performed. Consequently, the ALJ found the claimant was not an independent contractor, but was employed by Davis. Because Davis did not have workers’ compensation insurance, the ALJ concluded Happy Motors was the claimant’s statutory employer. Consequently, the ALJ ordered the Truck Insurance respondents to pay the claimant’s medical expenses for treatment at the hospital.
The Truck Insurance respondents do not dispute that if the claimant was an employee of Davis they are liable to pay benefits as the claimant’s statutory employer. However, the Truck Insurance respondents argue the ALJ’s findings of fact do not support the conclusion the claimant was an employee. Specifically, the Truck Insurance respondents assert the ALJ erred in finding the claimant was “an employee because [the ALJ] found only one of the nine factors” militating in favor of an employment relationship. These respondents also assert the findings are insufficient to determine the basis of the ALJ’s conclusion that Davis could terminate the claimant’s employment without liability. We find no error.
Section 8-40-202(2)(a), C.R.S. 2001, 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.
Section 8-40-202(2)(b)(II), C.R.S. 2001, provides that in order “to prove independence it must be shown that the person for whom services are performed does not” satisfy the nine factors listed in subsection (2)(b)(II)(A) through (I). However, the existence “any one of these factors is not conclusive evidence that the individual is an employee.” Section 8-40-202(2)(b)(III), C.R.S. 2001. Therefore, the statute does not establish any precise number or combination of factors which is decisive in determining whether or not the claimant is an employee or an independent contractor. 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, 981 P.2d 210 (Colo.App. 1998).
We must uphold the ALJ’s findings of evidentiary fact if supported by substantial evidence. Section 8-43-301(8), C.R.S. 2001. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Nelson v. Industrial Claim Appeals Office, supra. We also note the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law. Rather, it is sufficient if the ALJ makes findings concerning the evidence which he found dispositive of the issues involved. See Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
We also note that the ALJ found the written contract was not sufficient to create a presumption of an independent contractor status under the criterion established by § 8-40-202(2)(b)(III), and that determination is not disputed. Consequently, the Truck Insurance respondents carried the burden of proof to demonstrate the claimant was an independent contractor. Frank C. Klein Co., Inc. v. Colorado Compensation Insurance Authority, 859 P.2d 323 (Colo.App. 1993).
The Truck Insurance respondents’ assertions notwithstanding, the ALJ found that three factors favor the conclusion the claimant was not an independent contractor. Specifically, the ALJ found Davis could terminate the claimant without liability (factor D), Davis dictated the time of performance (factor G), and Davis paid the claimant personally rather than making checks payable to a trade or business name used by the claimant. (factor H). The power of Davis to terminate the claimant’s employment without further liability is indicative of authority to control the claimant’s performance, and such power is inconsistent with an independent contractor relationship. See Dana’s Housekeeping v. Butterfield, 807 P.2d 1218 (Colo.App. 1990).
We disagree with the Truck Insurance respondents’s assertion that the basis of the ALJ’s finding concerning the power of Davis to terminate the contract cannot be determined from the order. The ALJ found the claimant was paid on a “piecework” basis. This finding is supported by evidence the written contract between Davis and the claimant was for an indefinite period of time, and the parties agreed the claimant was to receive 7 dollars for each car transported. Thus, the contract contemplated an ongoing relationship and the ALJ was certainly not required to find, as the respondents suggest, that each time the claimant transported a vehicle constituted a “new contract.” Indeed, the claimant testified that she considered herself to be an employee of Davis and did not work for anyone else. There is no evidence Davis attempted to enforce the provision of the written contract requiring the claimant to prove she worked for five other businesses.
There is also evidence that Davis controlled the claimant’s performance of services by dictating the time of performance. The claimant testified that she would receive a call from Davis indicating that cars were ready at a particular dealer’s lot. The claimant understood that if she agreed to perform the delivery it was to be done within the day, and she did not ever wait to transport cars. Davis herself testified that she would call drivers in the morning, and if she was unable to contact one driver she would “work my way down” the list until she could find someone who would drive. Thus, it is apparent that Davis needed and expected prompt performance of the services offered to car dealers and the claimant would lose the opportunity for a delivery if she did not act immediately.
Finally, the record supports a determination the claimant was paid personally and not in the name of the business. (Tr. p. 11). Indeed, there is no evidence in the record that the claimant had a trade name or engaged in any business except for delivering cars under the agreement with Davis. This factor constitutes strong evidence the claimant was not engaged in any independent trade or business but was acting as an employee of Davis.
It is certainly true that some evidence in the record, including some of the factors found by the ALJ, could support the inference the claimant was an independent contractor. However, in light of evidence supporting the existence of three factors indicative of an employee-employer relationship, we conclude the ALJ’s findings are sufficient to support the order.
The Truck Insurance respondents also argue the evidence is not sufficient to support the ALJ’s order. However, for the reasons stated above, we disagree.
IT IS THEREFORE ORDERED that the ALJ’s order dated September 10, 2001, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
________________________________ David Cain
________________________________ Robert M. Socolofsky
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. 2001. 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 20, 2002 to the following parties:
Tina Dickson Boshart, 5206 Allison St., #315, Arvada, CO 80002
Bertha Davis d/b/a Air Care Transports, 6913 W. 13th Ave., Lakewood, CO 80215
Happy Motors, 5900 W. Colfax Ave., Lakewood, CO 80214
Truck Insurance Exchange, Susan Filipiak, Mid-Century Insurance Company, 7535 E. Hampden Ave., #300, Denver, CO 80231
John A. Sbarbaro, Esq., 226 W. 12th Ave., Denver, CO 80204-3625 (For Claimant)
Chris Forsyth, Esq., 1801 Broadway, #1500, Denver, CO 80202 (For Respondents Happy Motors and Truck Insurance Exchange)
Frank Lanford, Esq., 52 N. Lowell Blvd., Denver, CO 80214 (For Respondent Bertha Davis d/b/a Air Care Transports)
BY: A. Pendroy