W.C. No. 4-732-329.Industrial Claim Appeals Office.
December 23, 2009.
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FINAL ORDER
The claimant seeks review of an order of Administrative Law Judge Cannici (ALJ) dated July 31, 2009, that determined the claimant was an independent contractor and therefore denied and dismissed the claim for workers’ compensation benefits. We affirm.
This matter has been before us previously. Wetherbee Drywall is a drywall business that receives subcontracting work from general contractors and builders. Wetherbee Drywall subcontracted drywalling work to Gerardo Montanez Drywall (GMD). On July 2, 2007, the claimant was working on a house that GMD had subcontracted from Wetherbee Drywall. The claimant was injured while walking on stilts taping drywall when he tripped and fell. The ALJ, balancing the factors enumerated in § 8-40-202(2)(a) C.R.S. 2009, found that GMD had established by a preponderance of the evidence that the claimant worked as an independent contractor. The claimant appealed and in an order dated April 28, 2009, we remanded for entry of a new order on whether the claimant worked as an independent contractor after resolution of the conflict in the evidence of whether the claimant actually and customarily provided similar services to others. The ALJ entered an order on remand finding that the claimant actually and customarily provided drywall finding services to others and was an independent contractor pursuant to § 8-40-202(2) C.R.S. 2009. Therefore, the ALJ denied and dismissed the claim.
On appeal, the claimant again contends that his due process rights were denied by the respondent’s clear conflict of interest and wrongfully withholding information. This contention is similar if not identical to the argument made by the claimant in his original appeal. We remain unpersuaded.
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The claimant next contends that there was no substantial evidence to support the finding that the claimant was an independent contractor at the time of the injury. To a large extent, the claimant reiterates the arguments he made in his brief previously filed with us. We previously concluded that the record supported the ALJ’s resolution of the factual issues enumerated in § 8-40-202(2)(a) regarding whether the claimant was free from control and direction in the performance of the service. To the extent that the claimant argues that there is not substantial evidence in the record to support the ALJ’s findings on the issues enumerated in § 8-40-202(2)(a) we are not persuaded to depart from our original determination. On the claimant’s contention that there was no substantial evidence to support the ALJ’s finding that the claimant actually and customarily provided drywall services to others we disagree.
As we noted in our previous order, 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. 2009 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). Furthermore, this standard requires that we defer to the ALJ’s credibility determinations, as well as his assessment of the sufficiency and probative value of the evidence.
Here the ALJ made the following relevant findings of fact with record support. The claimant was not required to work exclusively for GMD. Tr. (9/19/2008) at 2, 17, 32, 103. During the time the claimant worked for GMD, he performed similar services for at least one other subcontractor. Tr. (9/19/2008) at 32, 35, 103; Kirk Depo. at 18-20. The credible testimony of Mr. Montanez revealed that during the period the claimant worked for him, the claimant continued to work for Mr. Salgado and others in Denver, Colorado Springs, and Pueblo. Tr. (9/19/2008) at 32, 35. On several occasions, Mr. Montanez checked on houses that he had subcontracted to the claimant for drywall finishing but the claimant and his crew were not at the houses. Tr. (9/19/2008) at 32. Mr. Montanez specifically noted that, shortly before the claimant began working on the house where he was injured, he performed work for Mr. Salgado on a house on Old Ranch Road in Colorado Springs. Tr. (9/19/2008) at 34. There were also several times when Mr. Kirk, a supervisor for Wetherebee Drywall, stopped by houses where the claimant was supposed to be working but the claimant was not present. Kirk Depo. at 16-18. The evidence also reveals that during the two-year period preceding his work injury the claimant moved from one contractor to the next when work slowed down or when a
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subsequent contractor could offer him more steady work. Tr. (9/19/2008) at 23-25, 103; Tr. (5/9/2008) at 46-50. The ALJ concluded that the claimant actually and customarily provided drywall-finishing services to others.
In our view, there is substantial evidence in the record to support the ALJ’s determination that finding that the claimant actually and customarily provided drywall services to others. Therefore, we perceive no basis upon which to set aside the ALJ’s order.
IT IS THEREFORE ORDERED that the ALJ’s order dated July 31, 2009 is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
______________________________ John D. Baird
______________________________ Thomas Schrant
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WETHERBEE DRYWALL, Attn: MR TONY WETHERBEE, COLORADO SPRINGS, CO, (Employer).
PINNACOL ASSURANCE, Attn: HARVEY D FLEWELLING, ESQ., DENVER, CO, (Insurer).
KEN DANIELS, Attn: KEN R DANIELS, ESQ., DENVER, CO, (For Claimant).
RUEGSEGGER SIMONS SMITH STERN. LLC, Attn: THOMAS M STERN, ESQ., DENVER, CO, (For Respondents).
GERARDO MONTANEZ DRYWALL, Attn: GERARDO MONTANEZ, COLORADO SPRINGS, CO, (Other Party).
ROGER FRALEY, JR ESQ., DENVER, CO, (Other Party 2).
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