W.C. No. 4-653-327.Industrial Claim Appeals Office.
April 10, 2006.
FINAL ORDER
The claimant seeks review of an order dated November 21, 2005, of Administrative Law Judge Felter (ALJ) that found the claimant was an independent contractor and denied the claim for workers’ compensation benefits. We affirm.
The record indicates that the claimant filed a worker’s claim for compensation alleging an injury which occurred on June 4, 2005, while working for Artistry Drywall (Artistry). The ALJ entered an order containing the following pertinent findings of fact. The owner of Artistry Drywall testified he did not have any employees although he “employed” a number of subcontractors. The owner testified that he would contract with the claimant for specific projects, but had never employed him on a regular basis. A general contractor hired Artistry for a project. Artistry contracted with the claimant to do some drywall finishing on this project.
The ALJ found the owner’s testimony to be credible and persuasive. The ALJ found that during the project the owner (1) never required the claimant to work for him exclusively; (2) never established a specific quality standard for the claimant; (3) never paid the claimant an hourly rate; (4) did not feel he had the right to terminate the claimant in the middle of the project (as he would a normal employee); (5) never provided any training for the claimant; (6) did not provide any tools for the claimant; (7) did not provide any benefits for the claimant; (8) did not ever attempt to dictate the time of performance (including setting specific hours); (9) and paid him by the job rather than hourly.
The claimant was paid personally by check at his request. However, the claimant had begun the trade name and business registration process. The claimant had a telephone number and cell phone number in his trade name and advertized in the yellow pages The claimant was not precluded from working other jobs or for other contractors. The claimant did work for numerous other companies installing drywall. The owner testified that although he provided plans and specifications regarding the work, he did not actually oversee the work or instruct the claimant as to how the work should be performed. The owner did not control or direct the claimant with respect to the performance of his drywall duties. The claimant was, in general, free from control and direction in the performance of his services. The claimant was paid by the job. The claimant received no training or tools from Artistry. The owner set a general completion schedule but did not set specific hours for the claimant. The business operations of the Claimant and Artistry were not combined.
Based on these findings of fact the ALJ found the claimant was customarily engaged in the independent business of drywall installation. The respondents were found to have demonstrated that the claimant was an independent contractor and not an employee.
To prove entitlement to workers’ compensation benefits a claimant must prove he performed services for Artistry. §8-41-301(1)(b), C.R.S. 2005. Once established, the burden shifted to the respondents to prove the claimant was an independent contractor, not an employee. Stampados v. Colorado D S Enterprises, Inc., 833 P.2d 815 (1992).
Section 8-40-202(2)(a), C.R.S. 2005, states that an individual performing services for another is deemed to be an employee, “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) also provides that the test for determining whether an individual is an employee for purposes of the Workers’ Compensation Act of Colorado shall be based on the nine criteria for proving independence found in subparagraph (2)(b)(II). Section 8-40-202(2)(b)(III) further provides that a document may satisfy this requirement by demonstrating the existence of the factors listed in subparagraph (II). However, a person may be determined to be an independent contractor even if all nine criteria set forth in § 8-40-202(2)(b)(II) are not established See Nelson v. Industrial Claim Appeals Office, 981 P.2d 210
(Colo.App. 1998).
The ALJ found that there was no written agreement between the claimant and Artistry that would create a presumption of an independent contractor status under the criterion established by § 8-40-202(2)(b)(III). However, the ALJ also found the claimant was paid in his personal name instead of a trade or business name, although this was at the claimant’s request and the claimant was working toward a trade name. The ALJ found the other factors listed in § 8-40-202(2)(b)(II) existed and indicated the claimant was free from control and direction by Artistry. Therefore, the ALJ found the respondents sustained their burden to prove the claimant was an independent contractor at the time of the injury.
On appeal, the claimant’s petition to review only generally alleges the respondents failed to prove by a preponderance of the evidence that the claimant was an independent contractor. Moreover, the claimant has not filed a brief in support of his petition to review and, therefore, the effectiveness of our review is severely limited. Ortiz v. Industrial Commission, 734 P.2d 642 (Colo.App. 1986). Two hearings were held on this matter and the claimant has failed to provide a transcript of one of the hearings 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 question of whether a worker is an employee is a question of fact for resolution by the ALJ based on the particular circumstances presented. Frank C. Klein v. Colorado Compensation Insurance Authority, 859 P.2d 323 (Colo.App. 1993). We must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2005; Locke v. Longacre, 772 P.2d 685 (Colo.App. 1989); Weld County Kirby Co. v. Industrial Commission, 676 P.2d 1253 (Colo.App. 1983).
We have reviewed the record and the ALJ’s findings of fact and conclusions of law. The ALJ’s findings are sufficient to permit appellate review and the ALJ resolved conflicts in the evidence based upon weighing of the evidence and his credibility determinations. Further, the ALJ’s findings are amply supported by substantial evidence in the record and the findings support the conclusion that the respondents sustained their burden to prove the claimant was an independent contractor. The ALJ correctly applied the law and did not err in dismissing the claim. Accordingly, we perceive no basis on which to disturb the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 21, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ John D. Baird
____________________________________ Thomas Schrant
Leroy Cordova, Littleton, CO, Dan Bernd, Artistry Drywall, Thornton, CO, Douglas Olson, American Family Insurance, Schofield, WI, Katherine E. Conahan, Esq., Denver, CO (For Claimant)
Andrew R. Bantham, Esq. and T. Paul Krueger, II, Esq., Redwing Rd., Fort Collins, CO (For Respondents)