Pella Windows & Doors, Inc.; and Pinnacol Assurance, Petitioners,
Industrial Claim Appeals Office of the State of Colorado and Christopher Pierce, Respondents.
Opinion is subject to revision upon final publication.
Industrial Claim Appeals Office of the State of Colorado. WC
D. Flewelling, Denver, Colorado, for Petitioners.
Appearance for Respondent Industrial Claim Appeals Office.
Simpson Eldredge Hersh & Jardine, P.C., John M. Connell,
Brian Matise, Nelson Boyle, Englewood, Colorado, for
Respondent Christopher Pierce.
and Brown, JJ., concur.
In this case, we consider whether the independent contractor
test adopted by the Colorado Supreme Court in Industrial
Claim Appeals Office v. Softrock Geological Services,
Inc., 325 P.3d 560, 2014 CO 30, an unemployment case,
applies to workers' compensation actions. We determine
that the Softrock standard applies but conclude that
the Industrial Claim Appeals Office (Panel) exceeded its
authority by disregarding the findings of fact made by the
administrative law judge (ALJ). We therefore set aside the
Panel's orders and remand with directions to reinstate
the full findings of fact, conclusions of law, and order
issued by the ALJ on November 25, 2015.
[¶2] Claimant, Christopher Pierce, began
employment as a service technician for employer, Pella
Windows & Doors, Inc., in June 2008. In March 2009, Pella
laid off its entire team of seventeen service technicians.
Immediately thereafter, claimant was one of nine service
technicians offered a " service contract" with
Pella, which he accepted. Pella signed a contract with
claimant called the Master Service Subcontract Agreement.
[¶3] Under the terms of the service
contract, claimant was no longer Pella's employee but was
described as an independent contractor. Pella could hire
claimant to perform service work for its customers, but the
written contract did not prohibit or prevent claimant from
performing work for individuals or entities other than Pella.
that, if he so chose, he could advertise his business and
accept other work.
[¶4] Claimant testified that his daily work
remained largely unchanged. However, he took several steps,
many at Pella's behest, separating him from Pella's
employ, including but not limited to the following:
• Claimant formed his own business and registered his
business name, CP Window Service (CP), with the Colorado
Secretary of State in March 2009.
• Claimant renewed the CP trade name with the Secretary
of State's Office in 2010, 2011, 2012, and 2013.
• Claimant could work any day he wished. If he wanted to
take a day off, he simply so advised Pella one week in
• Pella issued payment checks to CP — not to
claimant — for work performed by the job, rather than
by the hour, regardless of how long it took to complete the
• Pella did not withhold taxes from the checks it wrote
to CP; claimant was responsible for paying any taxes he or CP
• Claimant obtained and paid for his own liability
• Claimant also lost his health insurance when Pella
" made the switch over."
• Claimant's business operations as CP were never
combined in any way with Pella's business operations.
[¶5] Claimant was likewise required to
obtain his own workers' compensation insurance, but when
he established CP in March 2009, he filed a form with the
Department of Labor expressly rejecting such insurance. Four
months later, he filed a second rejection of workers'
[¶6] By contrast, other factors evidenced
claimant's dependence on Pella's business:
• CP Window Service had no employees other than
• Customers paid Pella for the service work, not CP.
• Although the written contract permitted him to work
for others, in practice claimant never worked for any
individual or entity other than Pella " from 2009 until
• Claimant testified that Pella work kept him busy full
time, leaving him no time or opportunity to accept other
• He had no customers other than Pella.
• Claimant did not advertise CP.
• Claimant had no business cards for CP. He testified
that Pella provided him with " blank" cards bearing
Pella's phone and fax numbers, on which he could
handwrite in his or CP's name.
[¶7] On December 11, 2013, claimant was
repairing a window pursuant to a Pella assignment when he
fell from a second-floor window. The fall resulted in a
compression fracture of claimant's spine at L1. Claimant
now suffers from paraplegia. He told the hospital during his
initial stay that he was " self employed and a contract
employee for [the] job he was on, so there is NO
worker[s'] comp[ensation] possibility." He also
indicated on other related medical forms, in conversations
with doctors, and on a social security disability benefits
application that he was self-employed and had been working as
an independent contractor. Nonetheless, several months after
sustaining his injury, claimant filed a claim for
workers' compensation coverage, which Pella and its
insurer, Pinnacol Assurance, contested on the ground that
claimant was an independent contractor at the time of his
[¶8] The parties litigated the issue. The
resulting case has had a lengthy procedural history. It went
to a hearing in September 2014 conducted by ALJ Michelle
Jones. In analyzing the evidence presented, ALJ Jones applied
the independent contractor tests set forth in the
Workers' Compensation Act (WCA), section 8-40-202(2)(b),
C.R.S. 2019. That statutory section enumerates nine criteria
which establish an independent contractor's independence
from a prospective employer. It also mandates that, if the
worker and the putative employer enter into a written
contract, the document " shall create a rebuttable
presumption of an independent
contractor relationship between the parties." §
[¶9] ALJ Jones found that the nine factors
all weighed in Pella's favor, tipping the scales toward a
finding that claimant was an independent contractor rather
than an employee. For example, she explained that, although
claimant had no employees and performed work for no one other
than Pella, the " issue is whether or not claimant was
required to work exclusively for the employer."
She concluded claimant was not required to work exclusively
for Pella. She noted that there was conflicting testimony
about whether claimant's work was inspected by Pella, but
concluded that the evidence did not establish that Pella
oversaw claimant's work or instructed claimant on how to
perform the work. Likewise, although ALJ Jones credited
claimant's testimony that " he was provided with
materials and equipment necessary for his repair work . . .
includ[ing] . . . scaffolding, ladders, suction cups, and
glass cutters," she found that " the evidence
establishes that the actual tools used were"
claimant's. She also found that Pella provided claimant
with no more than " minimal training" and no longer
provided him with tools to perform the service work, although
he did obtain some materials from Pella to perform the work.
She determined that the written contract between the parties
created a rebuttable presumption that claimant was an
independent contractor, which he failed to overcome. Based on
her analysis of all nine factors, she concluded claimant was
an independent contractor.
[¶10] But, in May 2015, the Panel set aside
ALJ's Jones' order, concluding that she had failed to
follow the test adopted by the supreme court in
Softrock . Although the WCA specifies that the
determination " whether an individual is an
employee" or an independent contractor for workers'
compensation purposes " shall be based on the nine
criteria found in section 8-40-202(2)(b)(II)," the Panel
concluded that Softrock applied because the nine
factors in the WCA are identical to the nine factors listed
in the Colorado Employment Security Act (CESA), section
8-70-115(1)(c), C.R.S. 2019. ...