Opinion
W.C. No. 4-216-968
July 18, 1995
FINAL ORDER
The claimant seeks review of a final order of Administrative Law Judge Wells (ALJ) which dismissed the claim for benefits on the ground that the claimant was not an employee of respondent Canyon Marine, Inc. (Canyon Marine). We affirm.
The ALJ found that the claimant was injured on June 18, 1994 while loading a river raft on a transport vehicle. The issue is whether, at that time, the claimant was an employee of Canyon Marine or an independent contractor.
The ALJ found that, in early June 1994, the claimant approached Greg Felt (Felt), owner of Canyon Marine. The claimant presented Felt with a letter printed on the stationary of "Manitou Guide and Outfitters, Inc." The letter states that Manitou Guide and Outfitters "is a sub-contracting corporation" offering river guide services and equipment rentals. The letter also lists the claimant as "president" and "senior guide."
Felt inquired whether the claimant might be available as a river guide on June 18. The claimant stated that he was available and offered his services for $100. Felt agreed to this price.
Felt directed the claimant to arrive for work at approximately seven-thirty on the morning of June 18, 1994, and the claimant did so. Shortly after arriving for work, the claimant was "directed" by one of Canyon Marine's "trip leaders" to help load a raft on a vehicle. During this loading process, the claimant sustained his injury.
Applying § 8-40-202(2)(a), C.R.S. (1994 Cum. Supp.), the ALJ concluded that the claimant was not an "employee" of Canyon Marine. Specifically, the ALJ found that the claimant's "chief duty was to safely guide" his raft down the river, and that the claimant's loading of the raft was "an insignificant part of the services that [he] contracted to perform." Further, the ALJ stated that in guiding the raft the claimant was "free from control and direction . . . both under the oral contract with Canyon Marine and in fact."
Moreover, the ALJ concluded that the claimant was engaged "in an independent business with respect to his river guide and equipment rental service." The ALJ was particularly persuaded by the letter which claimant presented to Felt at the meeting in early June.
I.
On review, the claimant first contends that the ALJ erred in determining that the claimant was "free from control and direction" in the performance of services for Canyon Marine. In support of this contention, the claimant points out that Felt directed him to appear for work at a particular time on June 18, 1994. Further, the claimant relies on the fact that he was "directed" by the trip leader to assist in loading the raft. We are unpersuaded by the claimant's argument.
The pertinent provisions of § 8-40-202(2)(a) provide as follows:
"Notwithstanding any other provision of this section, any individual who performs services for pay or 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 8-41-401(3), C.R.S. (1994 Cum. Supp.), provides that an individual "excluded" from the definition of an "employee" under § 8-40-202(2), and who does not have workers' compensation coverage, does not have any cause of action for workers' compensation benefits.
Section 8-40-202(2), and the cited portion of § 8-41-401(3), were enacted as part of the 1993 amendments to the Workers' Compensation Act. 1993 Colo. Sess. Laws, ch. 103 at 355-358. At the same time these amendments were adopted, the General Assembly altered the "Legislative Declaration" of the Act by the addition § 8-40-102(2), C.R.S. (1994 Cum. Supp.). The amended portion of the Legislative Declaration is as follows:
"It is the intent of the general assembly that when determining whether an individual is an employee only the factors specified in § 8-40-202(2) and any case law which has construed the provisions of section 8-70-115 are to be considered. It is further the intent of the general assembly that the provisions set forth in § 8-40-202(2) supersede the common law."
Section 8-70-115(1)(b), C.R.S. (1994 Cum. Supp.), is a provision of the Colorado Employment Security Act which defines "employment" for purposes of unemployment insurance compensation. The language of § 8-70-115(1)(b) parallels the language of § 8-40-202(2)(a).
Thus, it is appropriate for us to consider unemployment insurance case law interpreting § 8-70-115. Further, as we held in King v. Drywall Connection, Inc., W.C. No. 4-216-758, May 5, 1995, it is proper to consider the "factors" enumerated in § 8-40-202(2)(b)(II)(A)-(I), C.R.S. (1994 Cum. Supp.).
In the context of § 8-70-115, it has been held that freedom from "control and direction" means freedom "over the means and methods of the work." Thus, "independent contractors" may be subject to certain controls involving the "ends or results" of the work, so long as they are not subject to control over the means and methods of accomplishing the work. Carpet Exchange v. Industrial Claim Appeals Office, 859 P.2d 278 (Colo.App. 1993). Consequently, in Carpet Exchange, the court held that carpet installers were free from "control and direction" despite the fact they were directed to report for work at a particular time, and subject to "ethics guidelines" involving dress, language, and drinking on the job. 859 P.2d at 282.
Within these legal boundaries, the question of whether a particular claimant is free from control and direction is a question of fact for resolution by the ALJ. See Weld County Kirby Co. v. Industrial Commission, 676 P.2d 1253 (Colo.App. 1983). Thus, we must uphold the ALJ's determination if supported by substantial evidence in the record. Section 8-43-301(8), C.R.S. (1994 Cum. Supp.).
Here, the ALJ found numerous indicia that the claimant was free from control and direction in the performance of his services as a river guide. These include the fact that the claimant was in command of the boat when it was on the river, and exercised his independent judgment concerning navigation and safety. (Tr. p. 42). Further, the claimant's contract with Canyon Marine was for the performance of a single trip, and he was paid at a fixed rate. Also, the claimant was not provided any training by Canyon Marine, and supplied his own safety equipment. All of these factors, which are significant under § 8-40-202(2) and the applicable case law, support the ALJ's order.
It is true, as the claimant argues, that Canyon Marine established a particular time for the claimant to report to work, and that Canyon Marine's trip leader "directed" the claimant to assist in loading the raft. However, in view of the totality of the evidence, these events do not reflect overall control and direction as to the means and methods of performance of the claimant's duties as a river guide. Carpet Exchange v. Industrial Claim Appeals Office, supra. Therefore, the ALJ's determination that the claimant was not subject to control and direction is supported by substantial evidence, and must be upheld.
II.
The claimant next contends that the ALJ erred in determining that the claimant was "customarily engaged" in an independent business. In support of this proposition, the claimant cites evidence that Canyon Marine had regular employees who worked as river guides. We reject this argument.
In construing the parallel provision of § 8-70-115(1)(b), the Court of Appeals stated that, in order to be customarily engaged in an independent business, the worker must "actually and customarily provide similar services to others at the same time he or she works for the putative employer." Carpet Exchange v. Industrial Claim Appeals Office, 859 P.2d at 282. The court indicated that the purpose of § 8-70-115 "is to protect the security of workers who receive substantially all of their earnings from one employer." Id., at 282.
Here, the ALJ found that the letter of introduction states that "over the years [the claimant] provided services to many local outfitters." Further, the claimant himself admitted that he worked for employers other than Canyon Marine.
Thus, there is substantial evidence to support the determination that the claimant was engaged in an independent business as a river guide. The question is not whether other river guides might or might not be classified as employees, but whether the claimant himself was customarily engaged in independent business. Section 8-40-202(2)(a).
III.
The claimant's final argument is that the ALJ erred in considering the contents of the claimant's letter to Felt. In support of this proposition, the claimant argues that proof of independent contractor status by way of a written document is controlled by § 8-40-202(2)(b), C.R.S. (1994 Cum. Supp.). The claimant reasons that because the letter does not contain all of the elements described in § 8-40-202(2)(b)(II)(A)-(I), the ALJ should not have considered the letter. We disagree.
Section 8-40-202(b)(I) provides as follows:
"To prove that an individual is engaged in an independent trade, occupation, profession, or business and is free from control and direction in the performance of the service, the individual and the person for whom services are performed may show by a perponderance of the evidence that the conditions set forth in paragraph (a) of this subsection (2) have been satisfied. The parties may also prove independence through a written document."
Section 8-40-202(2)(b)(II) provides that if a party seeks to prove independence through a written document, the document must be signed by both parties and contain all of the elements set forth in § 8-40-202(b)(II)(A) through (I). We have previously stated that, as we understand this statutory scheme, the factors contained in § 8-40-202(2)(b)(II) are dispositive only if a party is seeking to demonstrate "independence" by relying purely on a written agreement. King v. Drywall Connection, Inc., supra. Here, the respondents do not assert that the letter constituted an "agreement" between the claimant and Canyon Marine. Rather, the respondents' position is that the letter constitutes some evidence tending to show "independence" under § 8-40-202(2)(a).
Under these circumstances, the ALJ did not err in considering the letter. Since the respondents did not offer the letter for the sole purpose of establishing "independence through a written document," but rather as some evidence tending to meet their general burden of proof, it was proper for the ALJ to consider the document. Section 8-40-292 [8-40-202] (B) (I).
IT IS THEREFORE ORDERED that the ALJ's order, dated October 14, 1994, is affirmed.
INDUSTRIAL CLAIM APPEALS PANEL
___________________________________ David Cain
___________________________________ Kathy E. DeanNOTICE
This Order is final unless an action to modify or vacate the 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, with service of a copy of the petition upon the Industrial Claim Appeals Office and all other parties, within twenty (20) days after the date the Order was mailed, pursuant to §§ 8-43-301(10) and 307, C.R.S. (1995 Cum. Supp.).
Copies of this decision were mailed July 18, 1995 to the following parties:
John R. Caldwell, P.O. Box 179, Westcliffe, CO 81252
Canyon Marine, Inc., Attn: Greg Felt, P.O. Box 545, Salida, CO 81201
Colorado Compensation Insurance Authority, Attn: P. Tochtrop, Esq. (Interagency Mail)
Chad J. Hessel, Esq., 415 S. Sahwatch, P.O. Box 1580, Colorado Springs, CO 80901-1580 (For the Claimant)
By: ______________________________