W.C. No. 4-451-606Industrial Claim Appeals Office.
July 23, 2001
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Mattoon (ALJ) which denied and dismissed his claim for workers’ compensation benefits. The claimant contends the ALJ erred in finding he was an “independent contractor” rather than an employee of respondent Stoehr Drive-In Cleaners (Stoehr). We affirm.
The claimant sustained injuries to his right hand on February 11, 2000, while repairing dry cleaning equipment for Stoehr. The ALJ found that at the time of the injury the claimant performed mechanical repair services for Stoehr two or three days per week, working three to six hours per day. The claimant repaired machinery with his own tools, although Stoehr occasionally provided a pipe wrench and a “sawzall.” Vercilline, owner of Stoehr, occasionally worked with the claimant, but once the claimant was “shown how a machine was supposed to work, he was generally able to fix it.”
The ALJ also found the claimant was paid an hourly rate for his work, but the claimant himself decided the rate based on the difficulty of the particular job performed. The claimant provided an invoice to Stoehr, and was paid by a personal check. No taxes or withholding was deducted from the check. The ALJ noted Stoehr used a similar payment scheme when it hired other “craftsmen,” and that Stoehr’s direct employees used time cards and were paid by the hour.
The claimant also operated an enterprise known as G K Mobile Home Service (G K). The ALJ found his business involved activities such as “setting up and repairing mobile homes.” However, the ALJ also found claimant “did not perform machinery and equipment repair and maintenance for anyone” other than Stoehr.
In resolving the claimant’s status as an employee or independent contractor, the ALJ “considered” the nine factors set forth in §8-40-202(2)(b)(II), C.R.S. 2000. The ALJ specifically found Stoehr; (1) did not require the claimant to work exclusively for Stoehr; (2) did not establish quality standards for the claimant’s work; (3) paid the claimant an hourly contract rate set by the claimant; (4) that there was no evidence concerning whether or not Stoehr retained the right to terminate the claimant’s services without regard to the contractual relationship; (5) Stoehr provided only “minimal training” to the claimant; (6) the claimant provided most of the tools, although Stoehr provided “a few tools”; (7) Stoehr did not dictate the hours of performance; (8) Stoehr generally paid the claimant personally; (9) there was no combination of business operations between the claimant and Stoehr. The ALJ stated that, viewing the evidence as a whole, she concluded the claimant was involved in an independent trade or occupation, and was, therefore, an independent contractor.
I.
On review, the claimant first contends the ALJ misapplied the criteria set forth in § 8-40-202(2)(b)(II) because she concluded the statute merely requires “consideration” of the factors, not “proof” of individual factors. We perceive no error.
In Nelson v. Industrial Claim Appeals Office, 981 P.2d 210
(Colo.App. 1998), the court held the General Assembly did not require proof of “a specific number of factors” in order to establish an independent contractor relationship. The court reasoned that §8-40-202(2)(b) (III), C.R.S. 2000, provides the “existence of any one of these factors is not conclusive evidence that the individual is an employee.” Moreover, the question of whether the employer has proven the existence of individual criteria is one of fact for determination by the ALJ. Nelson v. Industrial Claim Appeals Office, supra.
Here, the ALJ made explicit findings of fact concerning each of the criteria listed in the statute. Further, we understand the ALJ to have recognized that she was required to evaluate all of the criteria, but was not required to base her resolution of the issue on the presence or absence of any single criterion or group of criteria. Thus, we hold the ALJ correctly applied the law.
II.
The claimant next challenges the sufficiency of the evidence to support the ALJ’s findings concerning individual criteria, as well as her overall conclusion that the claimant was an independent contractor. Again, we find no error.
Because the question of whether individual criteria have been proven is one of fact, we must uphold the ALJ’s findings if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2000. This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, her credibility determinations, and the plausible inferences she drew from the record. Nelson v. Industrial Claim Appeals Office, supra. Further, we note the ALJ is not held to a standard of absolute clarity in expressing findings of fact and conclusions of law, provided the basis of the order is clear from those findings which are entered. We may also consider findings and conclusions which are implicit in the ALJ’s order. Magnetic Engineering, Inc. v. Industrial Claim Appeals Office, 5 P.3d 385 (Colo.App. 2000).
Here, the claimant challenges the sufficiency of the evidence to support the ALJ’s findings that Stoehr provided “minimal training” to the claimant, and that the claimant and Stoehr did not combine business operations. The claimant’s argument notwithstanding, substantial evidence supports the ALJ’s finding that Stoehr provided “minimal training” to the claimant. As the ALJ found, Vercilline testified that he showed that claimant how various machines were supposed to work, and the claimant then applied his skill to fix the machines. (Finding of Fact 3; Tr. p. 57). Thus, the “training” provided by the employer was in the nature of demonstrating the type of repairs needed, not instruction on how to conduct the repairs. The ALJ plausibly classified this training has minimal.
Neither do we agree with the claimant’s assertion that because the claimant was authorized to purchase machine parts on Stoehr’s accounts the ALJ was compelled to conclude the parties combined their business operations. As the ALJ found, the claimant provided invoices for the services performed, and Stoehr paid the invoices. There is no indication in the record that the parties shared bank accounts or books, profits or losses, or otherwise engaged in common business operations. The fact the claimant was authorized to charge on Stoehr’s account may properly be termed an agency relationship for the mutual convenience of the parties, and does not compel the conclusion the claimant and Stoehr “combined” their business operations.
The claimant next contends that even if the ALJ’s findings concerning the nine factors are supported by the evidence, the ALJ found that only five of the factors support a conclusion the claimant was an independent contractor. The claimant asserts that five of nine factors is insufficient as a matter of law to support the order, and, in any event, the ALJ made insufficient findings to explain her conclusion. We disagree.
As noted, Nelson v. Industrial Claim Appeals Office held the statute does not require the presence of a specific number of factors in order to establish an independent contractor relationship. Thus, we conclude that where a majority of the factors favor of a finding of an independent contractor relationship, there is no legal barrier to finding the claimant was an independent transactor. As we have held, the facts of this case do not present the issue of what the law might require in the event only a minority of the factors favored the finding of an independent contractor relationship.
Neither do we agree that the ALJ’s findings are insufficient to explain the basis of the decision. The ALJ concluded that five factors support the finding of an independent contractor relationship. These factors were that: (1) the claimant was not required to work exclusively for Stoehr, and in fact operated an independent business; (2) Stoehr did not establish specific quality standards; (3) Stoehr provided only “minimal training” to the claimant; (4) Stoehr did not dictate the claimant’s time of performance; (5) the claimant and Stoehr did not combine their business operations.
Further, it is apparent from the order why the ALJ did not consider the remaining four factors to be decisive. Although the claimant was paid by the hour, the claimant himself set the hourly rate depending on the complexity of the job performed. Further, the claimant provided invoices to Stoehr, as was customary for other skilled workers hired by Stoehr. Finally, the claimant was not required to use time cards, as were Stoehr’s regular employees. These facts, which the ALJ noted in her order, explain why the ALJ did not consider payment by the hour to be a persuasive factor in favor of finding an employment relationship. For similar reasons, and because the claimant had a long history of doing business with Vercilline, the ALJ was not persuaded that payment to the claimant in his individual capacity rather than the claimant’s trade name or business was of a particular significance.
It is true the ALJ found that Stoehr provided some tools to the claimant, but the ALJ also found the claimant provided “most of the tools.” Further, the ALJ found that Stoehr did not provide any benefits to the claimant. Thus, the order sufficiently explains why the ALJ was unpersuaded that Stoehr’s provision of a few tools to the claimant demonstrated persuasive evidence of an employment relationship. Finally, as the ALJ found, there was no evidence concerning whether Stoehr was free to “terminate” the claimant for reasons unrelated to the claimant’s performance under the parties’ informal, job-by-job relationship. However, the ALJ concluded this factor was not particularly persuasive because if Stoehr was dissatisfied with the claimant’s performance on a particular job, Stoehr was free to stop calling the claimant for future repairs, and the claimant was free to decline jobs offered by Stoehr.
It follows that we have no difficulty ascertaining the basis of the ALJ’s decision, including the reasons underlying her application of the nine criteria contained in the statute. Because the ALJ’s findings are supported by the evidence, and because her conclusions are not erroneous as a matter of law, the order must be upheld.
III.
The claimant next contends the ALJ erred in finding the claimant was “customarily engaged in an independent trade, occupation, profession, or business related to the service performed,” within the meaning of §8-40-202(2)(a), C.R.S. 2000. The claimant reasons that the ALJ found the claimant “did not perform machinery and equipment repair and maintenance” for any entity except Stoehr. Thus, the claimant reasons he could not have been customarily engaged in a trade or occupation “related” to the services he performed for Stoehr. We are not persuaded.
Words and phrases in a statute should be given their plain and ordinary meanings provided no absurdity results. Humane Society of the Pikes Peak Region v. Industrial Claim Appeals Office, ___ P.3d ___ (Colo.App. No. 00CA0968, April 26, 2001). In the context used here, the plain and ordinary meaning of the word “related” connotes connection or association. Webster’s II New College Dictionary, 1995.
Thus, the finding of an independent contractor relationship was not dependent on a finding that the services which the claimant performed for Stoehr were identical to the services he performed for other entities. Rather, the statute merely requires that the services performed for the alleged employer bear some connection or relation to the services generally performed in the independent trade or occupation. Further, § 8-40-102(2), C.R.S. 2000, provides that the fact “an individual performs services exclusively or primarily for another shall not be conclusive evidence that the individual is an employee.”
Applying these principles here, the ALJ found the claimant was best described as “a skilled all-around mechanical handyman,” and was engaged in this “type of business for both G K Mobile Home Service, and for Stoehr.” The record contains evidence to support the ALJ’s finding that, beyond the repair of dry cleaning equipment for Stoehr, the claimant rendered services such as setting up, repairing, and tearing down mobile homes. The claimant himself described his occupation as a self-employed contractor. Under these circumstances, the ALJ plausibly found the claimant was a “skilled all-around mechanical handyman.” Further, there was a reasonable basis to infer a connection or association between the skills which the claimant used with G K and those he used when working for Stoehr. The fact the claimant did not perform mechanical repair of dry cleaning equipment for other entities does not vitiate the order.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 17, 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 July 23, 2001 to the following parties:
Konrad Gerlock, 30689 Barnett Rd., Pueblo, CO 81006
Stoehr Drive-In Cleaners, P. O. Box 4188, Pueblo, CO 81003-0188
American Compensation Insurance Company, Emily Finn, RTW Colorado, Inc., P. O. Box 6541, Englewood, CO 80155
Michael W. Seckar, Esq., 402 W. 12th St., Pueblo, CO 81003 (For Claimant)
Mark H. Dumm, Esq., 3900 E. Mexico Ave., #1000, Denver, CO 80210 (For Respondents)
BY: A. Pendroy