Pella Windows & Doors, Inc.; and Pinnacol Assurance, Petitioners,
Industrial Claim Appeals Office of the State of Colorado and Christopher Pierce, Respondents.
Industrial Claim Appeals Office of the State of Colorado WC
D. Flewelling, Denver, Colorado, for Petitioner
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
1 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., 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. Claimant conceded
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 work.
• 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' compensation
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 injury.
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. Because Softrock had expanded the
analysis beyond the nine factors identified in the CESA, the
Panel reasoned the same expansion applied to the WCA.
11 Under Softrock, the Panel observed, the fact
finder charged with determining whether an individual was an
employee or independent contractor "was directed to
conduct 'an inquiry into the nature of the working
relationship'" and must consider "any other
relevant factors" in reaching a decision. The Panel then
listed several factors identified in Long View Systems
Corp. USA v. Industrial Claim Appeals Office,
197 P.3d 295 (Colo.App. 2008), another unemployment
compensation case, which Softrock had approvingly
cited. Softrock suggested that the Long
View factors should be considered as follows:
when evaluating a claim that the putative employee maintained
an independent trade or business, the Division and the ICAO
could consider whether the putative employee: maintained an
independent business card, listing, address, or telephone;
had a financial investment such that there was a risk of
suffering a loss on the project; used his or her own
equipment on the project; set the price for performing the
project; employed others to complete the project; and carried
Softrock, ¶ 16. Based on this language, the
Panel ruled that the "paucity of evidence in the record
pertinent to many of the factors mentioned by the
Softrock decision" required it to set aside ALJ
Jones' order and "remand the matter for additional
12 On remand a few months later, ALJ Jones conducted a second
hearing and admitted additional evidence. She again weighed
the nine criteria set out in section 8-40-202(2)(b)(II), but
also considered the Long View/Softrock
factors. ALJ Jones noted that claimant had a business name,
used tools he purchased, lost his benefits, ...