W.C. No. 4-698-600.Industrial Claim Appeals Office.
February 5, 2008.
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Broniak (ALJ) dated October 30, 2007, that determined the claimant was an independent contractor at the time of her injury and denied the claim. The claimant contends that the ALJ erred in concluding that the claimant was an independent contractor rather than an employee. We affirm.
The record indicates the claimant was injured on June 27, 2006 when she was attempting to serve process on a person and was physically assaulted. The ALJ entered factual findings resolving the issue of whether the claimant was an independent contractor or employee. The ALJ found that 50 percent of the respondent’s business involved serving process. The claimant performed work for the respondent as a “process server,” which entailed serving legal documents as required by the Colorado Rules of Civil Procedure. The respondent provided a copy of the relevant rules of procedure to the claimant, but no other training. Thus, the respondent provided only minimal training to the claimant. The respondent did not combine its business with the claimant’s. The respondent did not require the claimant to work exclusively for it. The respondent did not dictate specific times when the claimant was required to arrive at work or perform process serving. Rather, the claimant was free to refuse work if she chose. Only upon accepting work was the claimant then required to comply with deadlines imposed by the rules of civil procedure and the respondent did not otherwise oversee the claimant’s performance or establish a quality standard. The respondents paid the claimant per task accomplished and not hourly or salary. The respondent did not provide any tools or benefits to the claimant. The respondent could probably have terminated its agreement with the claimant without liability, but sufficient evidence regarding this issue was not
Page 2
introduced. The respondents issued payment to the claimant, individually, rather than to a trade name.
Based upon her 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. 2007 established that the claimant was an independent contractor at the time of her injury. Therefore, the ALJ dismissed the claim.
On appeal, the claimant first contends that the ALJ erred as a matter of law in concluding that she was an independent contractor rather than an employee. The claimant argues that the relevant statutory factors compel the conclusion that the claimant was an employee. We are unpersuaded that the ALJ erred.
The record contains no transcripts of the hearing before the ALJ. As a general matter, we must uphold the ALJ’s factual findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2007. Where, as here, the appealing party fails to procure transcripts of the relevant hearings we must presume the pertinent findings of fact are supported by substantial evidence. Nova v. Industrial Claim Appeals Office, 754 P.2d 800 (Colo.App. 1988). Admittedly, the ALJ’s findings as to the claimant being customarily engaged in an independent business related to process serving lack particularity. However, we cannot say that there is insufficient evidence to support her corresponding findings under the circumstances.
Pursuant to § 8-40-202(2)(a), C.R.S. 2007, “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). Here the ALJ found that the respondent had demonstrated that the claimant was free from direction and control in the performance of her duties and was customarily engaged in an independent business related to process serving.
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
Page 3
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); 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).
The claimant contends that the proper balancing of the criteria set forth in § 8-40-202(2)(b)(II) compels the conclusion that the claimant was an independent contractor. In support of its argument, the claimant contends that the ALJ, rather than taking into consideration all of the elements, instead based her conclusion on the basis that not all of the elements of the statute established the independent contractor status of the claimant. We disagree.
The ALJ specifically noted that she “balanced” all of the factors enumerated in § 8-40-202(2). Findings of Fact, Conclusion of Law, and Order at 3, ¶ 9 and at 5, ¶ 7. The ALJ then, as noted above, made specific findings of fact on the criteria set forth in §8-40-202(2)(b)(II). The ALJ considered the relevant factors and entered factual findings supporting her conclusion that, on balance, the claimant was an employee. Again, in the absence of a transcript of the relevant hearing we must presume the pertinent findings of fact are supported by substantial evidence.
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 was the ALJ’s prerogative to weigh the evidence, and that the ALJ might have reached a contrary conclusion is immaterial on review. Mountain Meadows Nursing Center v. Industrial Claim Appeals Office, 990 P.2d 1090 (Colo.App. 1999).
IT IS THEREFORE ORDERED that the ALJ’s order issued October 30, 2007 is affirmed.
Page 4
INDUSTRIAL CLAIM APPEALS PANEL
_______________________ John D. Baird
_______________________ Thomas Schrant
ANTOINETTE DONAHUE, BOULDER, CO, (Claimant).
DANLEY INVESTIGATIONS, HIGHLANDS RANCH, CO, (Employer).
JOHN TAUSSIG ESQ., BOULDER, CO, (For Claimant).
NEVIN A SEEGER PC, DENVER, CO, (For Respondents).
M C WILLIAMS AND ASSOCIATES LLC, DENVER, CO, (Other Party).
Page 1