W.C. No. 4-259-283Industrial Claim Appeals Office.
June 18, 1996
ORDER OF REMAND
The claimant seeks review of an order of Administrative Law Judge Friend (ALJ) which determined that Gary C. Thiret (Thiret) was not the claimant’s employer when the claimant suffered work-related injuries on June 19, 1995, and therefore, denied and dismissed the claim. We reverse and remand.
This claim is governed by § 8-40-202(2), C.R.S. (1995 Cum. Supp.), which states that:
“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.”
Here, the ALJ found that the claimant was hired by Thiret to perform services consisting of installing siding and repairing soffits. However, the ALJ found that the claimant was free from control in the performance of those services, and customarily engaged in an independent trade. Therefore, the ALJ determined that the claimant was not Thiret’s employee at the time of the injury.
The claimant contends, inter alia, that the evidence is insufficient to support the ALJ’s finding that the claimant is engaged in an independent trade or business. We agree.
Section 8-70-115, C.R.S. (1994 Cum. Supp.) provides that for purposes of unemployment compensation, “services performed by an individual for another” constitutes “employment” unless the individual performing the services is:
“free from control and direction in the performance of the service . . . . and is customarily engaged in an independent trade, occupation, profession or business related to the service performed.”
In this context, an individual is “customarily engaged in an independent trade” if the individual is actually and customarily providing similar services to others at the same time he works for the putative employer Barge v. Industrial Claim Appeals Office, 905 P.2d 25, 27 (Colo.App. 1995); Carpet Exchange v. Industrial Claim Appeals Office, 859 P.2d 278
(Colo.App. 1993) (floor covering installers who performed substantial percentage of services for others were engaged in independent business and not employees of the putative employe ).
The purpose of this requirement is to protect the security of workers who receive substantially all of their earnings from one employer. Barge v. Industrial Claim Appeals Office, 905 P.2d at 27 (musicians who were free to play other musical engagements, but did not maintain business addresses, and earned 95 to 99 percent of their income from putative employer were not customarily engaged in independent trade). Accordingly, the performance of occasional or insubstantial services for others does not establish that a worker is “customarily” engaged in an independent trade, occupation, or business. National Claims Assoc. v. Division of Employment, 786 P.2d 495 (Colo.App. 1989) (adjuster who solicited business only through National, worked exclusively for National for 2 1/2 years, and had supplemental adjusting service for only six months which he did not advertise, was not engaged in independent business).
For purposes of workers’ compensation, former § 8-40-102(2), C.R.S. (1994 Cum. Supp.)[amended 1995 Colo. Sess. Laws ch. 112, at 343, effective July 1, 1995], states that “only the factors specified in section 8-40-202(2) and any case law which has construed the provisions of section 8-70-115 are to be considered” in the determination of whether an individual is an employee. Thus, we conclude that the claimant was not “customarily engaged in an independent trade” unless there is proof that the claimant was actually and customarily providing similar services to others at the same time he was working for Thiret.
Our conclusion is buttressed by the July 1, 1995 statutory amendments which are currently codified at § 8-40-102(2), C.R.S. 1995 (Cum. Supp.). The amended version of § 8-40-102(2) restricts the determination of whether an individual is an employee to “the nine criteria found in section 8-40-202(2)(b)(II).” In so doing, the General Assembly is presumed to have recognized the caselaw interpreting § 8-70-115, and intended to eliminate consideration of that caselaw for purposes of workers’ compensation. See Rauschenberger v. Radetsky, 745 P.2d 640 (Colo. 1987); Fort Lupton Park and Recreation District v. Amoco Production Co., 800 P.2d 1324 (Colo.App. 1990).
As applied here, the record lacks substantial evidence from which the ALJ could reasonably infer that the claimant was actually and customarily providing a substantial percentage of similar services to others at the same time he worked for Thiret. Rather, the claimant testified that he worked exclusively for Thiret, and Thiret admitted that the claimant “was constantly working” for him, unless he was off for “vacation or something.” (Tr. pp. 37, 59). Moreover, neither party presented evidence that the claimant was working for anyone else during the days he did not work for Thiret. (Tr. pp. 35, 51, 59,).
The caselaw interpreting § 8-70-115 also indicates that evidence the claimant is free to perform services for others, and is not required to work exclusively for the putative employer is not dispositive of whether the claimant is engaged in an independent trade. Locke v. Longacres, 772 P.2d 685 (Colo.App. 1989) (evidence that licensed nurse on 24 hour call “might have sought other clients” was insufficient to prove that nurse was customarily engaged in independent business); National Claims Assoc. v. Division of Employment, supra, (vocational counselor who did not actively seek work from other companies, did not advertise her services and represented herself as working for putative employer was not customarily engaged in an independent trade); Radotek, Inc. v. Industrial Claims Appeals Office, (Colo.App. No. 95CA1995, May 23, 1996) (not selected for publication) (evidence that “most workers do accept other, similar work” insufficient to establish independent business in absence of evidence that the workers actually established a separate business). Accordingly, the ALJ’s finding that the claimant was not required to work exclusively for Thiret, does not support a conclusion that the claimant was customarily engaged in an independent business.
Similarly, the fact that a claimant “previously performed similar services for other companies” prior to the date the claimant was hired by the putative employer does not support a conclusion that the claimant was engaged in an independent business. Allstate Products v. Department of Labor, 782 P.2d 880, 884 (Colo.App. 1989). Thus, the ALJ’s finding that the claimant had a trade name prior to going to work for Thiret, and “was engaged in this occupational doing siding and soffit and type of work” does not resolve the pertinent issue. (Tr. p. 65); CAN-USA Construction, Inc. v. Gerber, 767 P.2d 765 (Colo.App. 1988), rev’d on other grounds at 783 P.2d 269 (1989) (the ALJ’s oral findings may be considered to interpret the ALJ’s written findings).
Furthermore, it is essentially undisputed that the claimant distributed Thiret’s business cards to potential clients, and no evidence was presented that the claimant had an office, a business number, or advertised under the trade name. (Tr. pp. 33, 34, 36, 45). Under these circumstances, the record is insufficient as a matter of law to support a finding that the respondents’ sustained their burden to prove that the claimant was “customarily engaged in an independent trade.” See Carpet Exchange v. Industrial Claim Appeals Office, supra. Therefore, the ALJ’s finding of the same must be set aside.
Moreover, the respondents’ failure to establish that the claimant was engaged in an independent business compels a conclusion that the claimant was Thiret’s “employee.” Consequently, the ALJ erred in denying the claim against Thiret and the matter must be remanded for further proceedings concerning the claimant’s entitlement to specific benefits.
In view of our disposition we need not consider the claimant’s remaining contentions of error.
IT IS THEREFORE ORDERED that the ALJ’s order dated October 30, 1995, is reversed and the matter is remanded to the ALJ for further proceedings concerning the claimant’s entitlement to specific benefits.
INDUSTRIAL CLAIM APPEALS PANEL
____________________________________ David Cain
____________________________________ Kathy E. Dean
Copies of this decision were mailed June 18, 1996 to the following parties:
Thomas M. Roberts, 3306 Longview Road, Erie, CO 80516
Gary C. Thiret, Certified Home Improvement, 322 E. Oak St., Ft. Collins, CO 80524-2915
Colorado Compensation Insurance Authority, Attn: C. Kriksciun, Esq. (Interagency Mail)
Richard E. Samson, Esq. Kristin N. Brown, Esq., 515 Kimbark St., Ste. 105, P.O. Box 1079,
Longmont, CO 80502 (For the Claimant)
Joel M. Pollack, Esq., 999 18th St., Ste. 3100, Denver, CO 80202 (For the Respondents)
BY: _______________________