W.C. No. 4-776-542.Industrial Claim Appeals Office.
December 1, 2009.
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FINAL ORDER
The respondent seeks review of an order of Administrative Law Judge Friend (ALJ) dated July 15, 2009, that determined the claimant was an employee and not an independent contractor. We affirm.
The claimant performed carpet-cleaning duties for the employer. Theses duties included steam cleaning carpet and cleaning out air ducts on residential properties. On June 28, 2008, the claimant was driving with a co-worker in a vehicle owned by the employer. The vehicle rolled over, ejecting the claimant. The claimant suffered traumatic injures. The ALJ found that the claimant had established by a preponderance of the evidence that at the time of the accident he was performing a service for the employer for pay. The ALJ found that the employer had not established that the claimant was an independent contractor at the time of the accident. The ALJ concluded that the claim was compensable. The employer brings this appeal.
I.
The employer first contends that the ALJ erred as a matter of law in failing to adhere to the nine statutory criteria set forth in § 8-40-202(2)(b)(II) C.R.S. 2009 because the ALJ added an extra burden not found in the statutory criteria of whether the claimant was customarily engaged in an independent trade. We disagree.
The claimant argues that § 8-40-102(2), C.R.S. 2009 provides that the test for determining whether an individual is an employee for the purposes of the Workers’ Compensation Act of Colorado (Act) shall be based on the nine criteria found in § 8-40-202 (2) (b) (II)
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which shall supersede the common law. However, § 8-40-202(2)(a), C.R.S. 2009, of the Act 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. (emphasis added).
The putative employer may establish independence by proving the presence of some or all of the nine criteria set forth in § 8-40-202(2)(b)(II), C.R.S. 2009. Nelson v. Industrial Claim Appeals Office, 981 P.2d 210 (Colo. App. 1998). However, we perceive no error in the ALJ’s conclusion of law that a necessary element to establish that an individual is an independent contractor is that such individual is customarily engaged in an independent trade, occupation, profession or business related to the service performed. The ALJ’s conclusion of law is drawn directly from § 8-40-202(2)(a). Therefore, the ALJ properly applied the statute to require both independence and the engagement in an independent business.
II.
The employer next argues that the ALJ improperly relied on cases interpreting the Colorado Employment Security Act when determining whether the claimant was an independent contractor. In his order the ALJ cited Carpet Exchange v. Industrial Claim Appeals Office, 859 P.2d 278 (Colo. App. 1993) and Long View Systems Corp. USA v. Industrial Claim Appeals Office, 197 P.3d 295, 299-300 (Colo. App. 2008) for the rule that in order to be customarily engaged in an independent business, the workers must actually and customarily provide similar services to others at or near the same time he works for the putative employer Carpet Exchange v. Industrial Claim Appeals Office and Long View Systems Corp. USA v. Industrial Claim Appeals Office are both cases interpreting the Colorado Employment Security Act, which governs the unemployment insurance system in Colorado.
The law applicable to the determination whether an individual is an independent contractor is similar in the workers’ compensation system and the unemployment insurance system and we have previously relied upon cases construing the unemployment insurance statutes. For example, in Abbott v. Sangre De Cristo Hospice, W. C. No. 4-525-702 (February 26, 2003) the Panel relied o Carpet Exchange and Long View Systems to conclude as a matter of law that one job is insufficient to constitute customary
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engagement in an independent trade or business. Therefore the Panel need not consider whether the claimant was free from control and direction, because both conditions must exist in order that a claimant be deemed an independent contractor. The employer correctly notes that Abbott v. Sangre De Cristo Hospice, was set aside by the Colorado Court of Appeals in Abbott v. Industrial Claim Appeals Office, (Colo. App. No. 03CA1284 June 24, 2004) (not selected for publication). However, there is no suggestion in the court’s opinion that the Panel incorrectly applied the law applicable to independent contractors. Rather, the court concluded that the Panel erred in determining that the claimant was not eligible for benefits under the Act because his employment was “casual.” However, the court also concluded that the Panel correctly determined that the ALJ erred in determining that the claimant was engaged in an independent trade and business.
Here the ALJ cited relevant sections from the Act including § 8-40-202(2)(a)and the nine criteria found in section § 8-40-202 (2) (b) (II). The ALJ also relied o Nelson v. Industrial Claim Appeals Office, supra, which is the leading case in the area of independent contractor. In our view, the ALJ relied on the appropriate legal authority. We also note that the Colorado Court of Appeals in Nelson cited Carpet Exchange v. Industrial Claim Appeals Office, supra. Therefore, in our opinion the ALJ did not commit error by citing, as did the court of appeals, the case of Carpet Exchange v. Industrial Claim Appeals Office, supra, in his order.
III.
The putative employer next contends that the ALJ misapprehended the facts in concluding that the claimant was an employee. The putative employer essentially argues that because the ALJ found that most of the nine factors listed in § 8-40-202 (2) (b) (II), weighed in favor of determining that the claimant was an independent contractor the ALJ erred by concluding that the claimant was an employee. We are not persuaded that the ALJ abused his discretion or otherwise erred.
The statute does not establish any precise number or combination of factors which is decisive in determining whether or not the claimant is an employee or an independent contractor Rapouchova v. Frankie’s Installation, W. C. No. 4-630-15(August 17, 2005). Rather, the ALJ determines as a matter of fact whether or not particular factors are present, and ultimately, whether the claimant is an employee or independent contractor based on the totality of the evidence concerning the statutory factors. Nelson v. Industrial Claim Appeals Office, supra.
Whether the criteria in § 8-40-202(2)(b)(II) are present in any particular case is a factual determination for resolution by the ALJ. Nelson v. Industrial Claim Appeals Office, supra. Because the issue is factual in nature, we must uphold the ALJ’s determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. 2009.
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This standard of review requires us to defer to the ALJ’s resolution of conflicts in the evidence, credibility determinations, and plausible inferences drawn from the record. Wal-Mart Stores, Inc. v. Industrial Claim Appeals Office, 989 P.2d 251 (Colo. App. 1999). In particular, we note that the weight and credibility to be assigned to expert and lay testimony is a matter within the discretion of the ALJ. Cordova v. Industrial Claim Appeals Office, 55 P.3d 186 (Colo. App. 2002).
Here the ALJ made the following findings of fact, which the employer on appeal has not contested. The claimant testified that, during the time he worked for the employer, he was not customarily engaged in an independent trade or business. The claimant testified that he had no prior experience in air duct or carpet cleaning. The claimant testified that he had never operated a business in the past, nor did he operate under a trade name. Although the claimant was not required to work exclusively for the employer, he was not customarily engaged in an independent trade or business before or during the time he worked for the employer. The ALJ found that the claimant’s testimony was credible. The ALJ also found that other factors indicating the claimant was an employee at the time of the accident were that the employer could terminate the claimant at any time without liability and the employer paid claimant personally, instead of through a trade or business name.
The ALJ did find that there were some factors indicating that the claimant was not an employee at the time of the accident. The employer did not establish a quality standard or oversee or instruct the actual work, the claimant was not paid a salary or at an hourly rate, the employer did not provide more than minimal training, the employer did not provide tools or benefits to the claimant, the employer did not dictate time of performance and the business operations were not combined.
However, the ALJ considered the totality of the circumstances and concluded that the employer had not established that the claimant was an independent contractor at the time of the accident. The ALJ’s findings of fact are supported by substantial evidence in the form of testimony from the claimant and a former employee of the respondent, and we are not at liberty to disturb them. These factual findings also support the ALJ’s conclusion that under the totality of the circumstances, there was an employment relationship rather than independent contractor status. 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).
IT IS THEREFORE ORDERED that the ALJ’s order dated July 15, 2009 is affirmed.
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INDUSTRIAL CLAIM APPEALS PANEL
______________________________ Curt Kriksciun
______________________________ Thomas Schrant
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STEVE ALLEN, 11681 LOGAN STREET, NORTHGLENN, CO, (Claimant)
AMERICA’S BEST CARPET CLEANING SERVICE, Attn: HENRY KIMBELL,, DENVER, CO, (Employer).
BACHUS SCHANKER, LLC, Attn: JAMES W OLSEN, ESQ., DENVER, CO, (For Claimant).
NATHAN, BREMER, DUMM MYERS, PC, Attn: BERNARD WOESSNER, ESQ., DENVER, CO, (For Respondents).
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