W.C. No. 4-566-126Industrial Claim Appeals Office.
March 23, 2004
FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Stuber (ALJ). The respondent argues the ALJ’s findings of fact compel the conclusion that the claimant was an independent contractor rather than an employee. We affirm.
The claimant does not dispute the sufficiency of the evidence to support the ALJ’s findings of fact. The ALJ found the respondent (Dunham) owns, manages and maintains numerous rental properties. In the past Dunham has performed some of the maintenance himself, but he has also contracted out some of the maintenance duties.
In October 2002 Dunham and the claimant orally agreed the claimant would perform duties for Dunham at the rate of $7 per hour. It was also agreed that Dunham would provide the claimant an apartment and deduct $15 per day rent from the claimant’s wages. Thereafter, the claimant worked approximately 35 hours per week for Dunham.
The ALJ found that Dunham designated the claimant’s work assignments, which apparently included repairing kitchens, cleaning apartments and yard work. The claimant’s duties were not “bid jobs” on a contract basis and Dunham was free to terminate the claimant from the employment without further liability. Dunham set general work hours but permitted the claimant to come and go freely, paying only for the actual hours worked. Dunham did not withhold taxes or provide insurance.
The claimant did not operate under any business name, and the ALJ found he had “no independent trade, occupation, profession or business.” Although Dunham did not establish quality standards for the claimant’s work, the ALJ found this was of little significance because the basic nature of the claimant’s duties did not really require them. Both Dunham and the claimant supplied tools for the claimant’s work.
On November 7, 2002, Dunham assigned the claimant the duty to strip old roofing material off of a building. The claimant fell from the roof and was injured.
The ALJ, employing a balancing test based on the criteria contained in § 8-40-202(2)(b)(II), C.R.S. 2003, found the evidence establishes the claimant was an employee, not an independent contractor. Consequently, the ALJ ordered Dunham to pay compensation and medical benefits for the claimant’s injury.
On review, the claimant contends the ALJ’s findings of fact compel the legal conclusion that the claimant was an independent contractor rather than an employee. The claimant asserts that any other conclusion would lead to the conclusion that a “homeowner” would be liable for injuries if a roofer fell while repairing the homeowner’s roof. The claimant also asserts that “roofing is generally recognized as a specialized field” and the “expectation” is that a roofer is an independent contractor. We perceive no error in the ALJ’s ruling.
Section 8-40-202(2)(a), C.R.S. 2003, provides that:
Notwithstanding any other provision of this section, any individual who performs services for pay for another shall be deemed 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.
In Nelson v. Industrial Claim Appeals Office, 981 P.2d 210 (Colo.App. 1998), the court construed § 8-40-202(2)(b)(II), C.R.S. 2003, as creating a “balancing test” to establish an independent contractor relationship and overcome the presumption of employment contained in § 8-40-202(2)(a). The court ruled that a putative employer need not prove the existence of all nine statutory criteria contained in subsection (2)(b)(II) to establish an independent contractor relationship. However, the question of whether the employer has presented sufficient proof to overcome the presumption is one of fact for determination by the ALJ. Hence, the ALJ’s determination must be upheld if supported by substantial evidence in the record. Id. at 213.
Here, the claimant concedes the sufficiency of the evidence to support the ALJ’s factual findings. Hence, it is undisputed the claimant was performing services for pay and the burden shifted to Dunham to prove an independent contractor relationship. See Frank C. Klein v. Colorado Compensation Insurance Authority, 859 P.2d 323 (Colo.App. 1993); Kessman v. Kappel Transportation, W.C. No. 4-474-725 (October 16, 2002).
The ALJ found that a number of the criteria contained in subsection (2)(b)(II) which are indicative of an employment relationship rather than independent contractor status were present here. Specifically, the services rendered by the claimant were not performed on a contract basis, and the claimant was paid an hourly rate. The claimant was paid personally because he did not own or operate his own business. The absence of performance criteria was of little significance because of the nature of the work, but Dunham did designate the tasks which the claimant was to perform on a daily basis. Both parties provided tools. The claimant’s assertions notwithstanding, these findings are sufficient to support the ALJ’s determination that Dunham failed to prove an independent contractor relationship under the “balancing test” discussed in Nelson. Thus, this issue was none of fact for the ALJ and not a question of law which we are permitted to decide regardless of the ALJ’s conclusion.
The claimant’s assertion that under the ALJ’s interpretation of the evidence homeowners would be liable for injuries sustained by roofing workers is unavailing. The Act contains specific protections for homeowners who contract out repair or yard work to their residences. Section 8-40-302(4), C.R.S. 2003, Section 8-41-402(1), C.R.S. 2003. However, both of these statutes provide that the exemptions will not apply where the claimant is otherwise an employee of the homeowner. Here, the ALJ has found the claimant was an employee of Dunham performing services in the course of Dunham’s regular business as a real estate owner and manager. The Act does not protect employers in this situation.
Further, the ALJ did not find the claimant contracted with Dunham to perform the specialized work of roofing. To the contrary, the ALJ found that the claimant was hired to perform numerous tasks, one of which involved the removal of old roofing material. Thus, the claimant was not employed to perform a “specialized task” as the respondent asserts.
IT IS THEREFORE ORDERED that the ALJ’s order dated August 28, 2003, 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, Colorado 80203, by filing a Petition to Review with the Court, within twenty (20) days after the date this Order was mailed, pursuant to §8-43-301(10) and § 8-43-307, C.R.S. 2003. 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 order were mailed to the parties at the addresses shown below on March 23, 2004 by A. Pendroy.
Alvin Salazar, 3140 Van Teylingen Dr., Apt. A, Colorado Springs, CO 80917-5119
John Dunham, 2115 N. Nevada, Colorado Springs, CO 80907
Kat Pennucci, Subsequent Injury Fund, Tower 2, #630, Division of Workers’ Compensation — Interagency Mail
Patrick T. Nackley, Esq., Parker Station Bldg., 19751 E. Mainstreet, #275, Parker, CO 80138 (For Claimant)
William A. Alexander, Jr., Esq., 3608 Galley Rd., Colorado Springs, CO 80909-4349 (For Respondent)