W.C. No. 4-632-020.Industrial Claim Appeals Office.
June 23, 2006.
FINAL ORDER
The claimant seeks review of an order dated November 2, 2005 of Administrative Law Judge Harr (ALJ) that determined the claimant was an independent contractor at the time he injured himself 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 ALJ found the respondent was a general contractor in the construction business. The claimant has been an independent contractor in the business of finishing drywall for some 17 years, working under a trade name. The respondent contracted with the claimant to patch drywall in the living room of his residence, where the claimant injured himself on November 3, 2004, when he fell from a ladder.
The ALJ entered factual findings resolving the issue of whether the claimant was an independent contractor or employee. The ALJ, citing inconsistencies in claimant’s statements, found that the claimant’s testimony that he no longer worked as an independent contractor after 2002 lacked credibility. The ALJ also found that the claimant exaggerated the number of hours and his earnings working for the respondent. The ALJ found the claimant’s wife’s testimony lacked credibility based on conflicting statements she made concerning income tax returns.
The employer testified that the claimant signed a Subcontractor’s Waiver of Liability and Responsibility for Taxes (Waiver) on July 9, 2004. Exhibit A. The claimant denied he signed it and his wife denied that the signature on the Waiver was the claimant’s. The ALJ, after comparing the signature on the Waiver with examples of the claimant’s signature and crediting the testimony of the respondent and a witness who testified that he observed the claimant sign the Waiver, found that the claimant signed the Waiver.
The ALJ further found the waiver established that the claimant understood he was hired as an independent contractor who owned his own construction company, that the claimant understood he would be liable for any injury to himself while performing construction work for the employer, that the claimant would carry his own insurance, that the respondent would not be responsible for deducting State or Federal taxes, that the claimant was responsible for paying his own taxes, and that the respondent would provide the claimant a 1099 IRS Form for reporting gross earning at the end of the calendar year.
The ALJ also entered the following findings of fact. The claimant worked for a number of different contractors from the time he signed the waiver until the time of his injury. The respondent thus did not require the claimant to work exclusively on the respondent’s job. Crediting the respondent’s testimony the ALJ found the claimant was paid an agreed upon contract rate for each job. The claimant decided how many hours the job required and contracted the work for a flat rate. The respondent paid the claimant a contract price, and not an hourly rate. The respondent provided no training for the claimant. The respondent neither oversaw the claimant’s work nor instructed him how to perform the work. The claimant provided his own drywall finishing tools, but was free to use ladders or other equipment the respondent had on the jobsite. The respondent neither dictated the claimant’s work hours nor time of completion although the claimant depended upon the respondent for rides to and from work because the claimant’s driver’s license had been revoked. In August of 2004 the claimant told the respondent he had obtained his own insurance. The employer paid the claimant by check, payable to him personally, instead of to his business.
Based upon his 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. 2005, established that the claimant was an independent contractor at the time of his 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 he 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. He also disputes particular findings of fact, arguing that they are unsupported by substantial evidence in the record. We are unpersuaded that the ALJ erred.
Pursuant to § 8-40-202(2)(a), C.R.S. 2005, “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).
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 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), C.R.S. 2005; 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 sets forth the evidence that might have supported a conclusion contrary to that reached by the ALJ.
The claimant argues that the respondent dictated when the workday began and when it ended because the respondent brought the claimant to work and brought him home from work. The ALJ concluded that the fact that the claimant depended upon the respondent for rides to and from work because the claimant’s driver’s license had been revoked does not translate into the respondent dictating the claimant’s work hours. In our opinion this is a plausible inference to be drawn from the record.
The claimant also notes that he testified that he considered the respondent to be his boss and that he could be terminated at any time. However, the ALJ was not compelled to credit the claimant’s testimony and, indeed, expressly found it not to be credible. It is true that the claimant disputes the ALJ’s determination that the claimant’s testimony lacked credibility, contending that it was an abuse of discretion because other evidence clearly supports the testimony of the claimant. See
Findings of Fact, Conclusions of Law, and Order at 1, ¶ 2. However, the ALJ’s credibility determinations are binding except in extreme circumstances, and there is ample support for the ALJ’s determination in this case. Arenas v. Industrial Claim Appeals Office, 8 P.3d. 558 (Colo.App. 2000).
The claimant also points out that the claimant was paid personally instead of by a check payable to a trade or business name. However, the statute does not require satisfaction of all nine criteria in § 8-40-202(2)(b)(II) in order to prove that the individual is not an employee. Nelson v. Industrial Claim Appeals Office, supra. The ALJ was not compelled to conclude from this factor that the claimant was an employee.
The ALJ considered the relevant factors and entered factual findings supporting his conclusion that, on balance, the claimant was an employee. The findings are supported by substantial evidence in the form of testimony from the respondent, the witness to the signing of the waiver, and documentary evidence presented by the respondent. 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).
The claimant also contends that the ALJ erred because the written Waiver was not clearly notarized and so did not comply with the standards set forth in § 8-40-202(2)(b)(IV). We do not understand the ALJ’s order as finding that the Waiver constituted a document under the statute that created a rebuttable presumption of an independent contractor relationship between the parties. Rather, as we read the ALJ’s order, he merely considered it some evidence on the issue. Therefore, it is not necessary to reach the question of whether the document met the requirements of § 8-40-202(2)(b)(IV). We have reviewed the claimant’s additional arguments and they do not alter our conclusions.
IT IS THEREFORE ORDERED that the ALJ’s order dated November 2, 2005, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
__________________________________ Curt Kriksciun
__________________________________ Thomas Schrant
Jose Vicente Salgado-Nunez, Loveland, CO, Sterling W. Myers d/b/a American Wallworks, Berthoud, CO, Bob L. Ring, Esq., Fort Collins, CO, (For Claimant).
Robert A. Garcin, Esq., Loveland, CO, (For Respondent).