Industrial Claim Appeals Office.
W.C. No. 4-520-335
February 10, 2003
FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Harr (ALJ) which determined the claimant was an independent contractor when he suffered a work-related injury and, therefore, denied the claim for workers’ compensation benefits. We affirm.
Section 8-40-202(2)(a), C.R.S. 2002, provides that:
“Notwithstanding any other provision of this section, 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.”
Section 8-40-202(2)(b)(II), C.R.S. 2002, provides that in order “to prove independence, it must be shown that the person for whom services are performed does not” satisfy the nine factors listed in subsection 8-40-202(2)(b)(II)(A) through (I). Section 8-40-202(2)(b)(II), C.R.S. 2002, provides that an individual is not an independent contractor if the individual is paid a salary or hourly rate instead of a fixed contract rate, and is paid in his individual name and not a trade name. The other criteria to be considered include whether the person for whom the services are performed provides more than minimal training to the individual, provides tools or benefits, dictates the time of performance, establishes a quality standard for the individual’s work, can terminate the individual for reasons other than violation of the terms of the contract or failure to produce a result that meets the contract specifications; combines its business with the business of the individual, and requires the individual to work exclusively for one person or company.
On September 13, 2001, the claimant suffered a work-related injury while employed as a house framer for GM Framing (GM). The ALJ found the respondents sustained their burden to prove the claimant was working as an independent contractor at the time of the injury. In support the ALJ found the claimant is the sole proprietor of Saldierna Construction which is a framing contractor. The ALJ also found that during the years 1999 through 2001 the claimant paid self-employment tax based on earnings as a framer less business expenses for labor and equipment. Not all the reported earnings were paid by GM Framing.
Crediting the testimony of Magdiel Rocha, (Rocha) the owner of GM, the ALJ further found that just before the industrial injury, Rocha orally hired the claimant and the claimant’s employees to frame a house for the fixed price of $4,800. Rocha made installment payments to the claimant of $1000 each as the framing progressed. The ALJ found the claimant and GM did not combine their business operations, and claimant paid his employees out of the installment payments.
In addition, the ALJ determined the claimant was free to work for other general contractors, that Rocha did not provide training or tools, and Rocha did not exercise control over the claimant’s work activities in a manner inconsistent with the claimant’s status as an independent contractor. Moreover, the ALJ found Rocha retained the right to terminate claimant and his crew only if claimant failed to follow blueprints for the project. Therefore, the ALJ denied and dismissed the claim. The ALJ’s order also allowed the respondents to withdraw their admissions of liability retroactive to May 23, 2002.
I.
On appeal the claimant first contends there is not substantial evidence to support some of the findings which underlie the ALJ’s determination that the claimant was free from GM’s control and direction. We disagree.
The determination of whether the respondents sustained their burden to prove the claimant’s independence is a question of fact for resolution by the ALJ. Nelson v. Industrial Claim Appeals Office, 981 P.2d 210
(Colo.App. 1998). Consequently, 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), C.R.S. 2002; F.R. Orr v. Rinta, 717 P.2d 965 (Colo.App. 1985). Under this standard we must defer to the ALJ’s credibility determinations, and his assessment of the sufficiency and probative value of the evidence. Dover Elevator Co. v. Industrial Claim Appeals Office, 961 P.2d 1141 (Colo.App. 1998).
We have reviewed the ALJ’s findings of fact and the record. There was a direct conflict between the claimant and Rocha concerning the nature of the claimant’s employment with GM. The ALJ explicitly resolved the conflict in favor of Rocha and there is substantial evidence in Rocha’s testimony to support the ALJ’s critical findings. Furthermore, the disputed portions of Findings of Fact 11, 12 and 14 reflect plausible inferences drawn from Rocha’s testimony. (Tr. pp. 23, 24, 26, 28, 29, 31, 35, 36, 37). Consequently, we are bound by the ALJ’s findings on review, and it is immaterial the claimant’s testimony if credited, might support a contrary result. See Prestige Homes, Inc. v. Legouffe, 658 P.2d 850, 856 (Colo. 1983).
As argued by the claimant, the record contains some evidence Rocha exercised direction and control over the claimant’s work schedule. However, that evidence did not preclude the ALJ from finding the claimant was an independent contractor. This is true because independent contractors may be subject to control sufficient to ensure that the end result contracted for is reached even though they are not subject to control over the means and methods of accomplishing that result. Carpet Exchange of Denver, Inc. v. Industrial Claim Appeals Office, supra.
Moreover, the existence of “any one of these factors is not conclusive evidence that the individual is an employee.” Nelson v. Industrial Claim Appeals Office, supra. Thus, evidence the claimant satisfied one or more of the nine criteria in § 8-40-202(2)(b)(II)(A)-(I) did not preclude the ALJ from finding the claimant was an independent contractor.
II.
The claimant also contends the ALJ’s findings of fact are insufficient to permit appellate review because the ALJ failed to determine whether GM was the claimant’s statutory employer. We disagree.
Initially, we reject the respondents’ contention the claimant waived this issue. The statutory employer argument was raised in the claimant’s Application for Hearing and the claimant’s Position Statement which the claimant’s attorney explicitly referenced at the commencement of the hearing on July 17, 2002. (Tr. p. 4)
Under § 8-41-401(1)(a), C.R.S. 2002, a company which is engaged in business by leasing or contracting out part or all of its work to a subcontractor is the employer of the employees of the subcontractor and is liable for the injuries of employees of the subcontractors, unless the subcontractor is insured. However, § 8-41-401(3), C.R.S. 2002, provides that “any individual who is excluded from the definition of employee under § 8-40-202(2)” shall not have any cause of action for work-related injuries under the Workers’ Compensation Act. (Emphasis added).
Here, the ALJ expressly found the claimant is excluded from the definition of employee under § 8-40-202(2). Thus, the ALJ’s findings compel the conclusion that § 8-41-401(1)(a) does not support the claimant’s contention that he suffered a compensable injury as the statutory employee of GM. Schreiber v. Brown Root, Inc., 888 P.2d 274
(Colo.App. 1993) (where findings of fact lead to only one conclusion the issue is a question of law). Consequently, the ALJ’s failure to make specific findings of fact on this issue is not a fatal error. See Uptime Corp. v. Colorado Research Corp., 161 Colo. 87, 420 P.2d 232 (1966) (ALJ is not required to explicitly discuss defenses or theories he rejected).
IT IS THEREFORE ORDERED that the ALJ’s order dated July 30, 2002, 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. 2002. 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 _________ February 10, 2003 ____________to the following parties:
Lorenzo Saldierna, 2561 W. 9th Ave., Denver, CO 80204
Magdiel Rocha d/b/a G M Framing, Inc. a/k/a G. M. Construction, 7803 Jasmine Ct., Commerce City, CO 80022
Legal Department, Pinnacol Assurance — Interagency Mail
Jack Kintzele, Esq., 1317 Delaware St., Denver, CO 80204 (For Claimant)
Dawn M. Yager, Esq., 999 18th St., #3100, Denver, CO 80202 (For Respondents)
BY: __________A. Hurtado__________