Windows v. ICAO

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.

SUMMARY
January 16, 2020

2020COA9

No. 18CA1908, Pella Windows v. ICAO — Labor and Industry —
Workers’ Compensation — Independent Contractors

A division of the court of appeals considers whether the

independent contractor analysis adopted by the Colorado Supreme

Court in Industrial Claim Appeals Office v. Softrock Geological

Services, Inc., 2014 CO 30, an unemployment case, also applies in

the workers’ compensation context and must be considered when

determining whether an injured worker is an independent

contractor for purposes of the Workers’ Compensation Act. The

division concludes that the Softrock analysis applies.

The division further concludes that once an administrative law

judge has weighed the statutory and Softrock factors, the

administrative law judge’s findings and determinations regarding
independent contractor status cannot be set aside if substantial

evidence supports them.
COLORADO COURT OF APPEALS 2020COA9

Court of Appeals No. 18CA1908
Industrial Claim Appeals Office of the State of Colorado
WC No. 4-950-181

Pella Windows & Doors, Inc.; and Pinnacol Assurance,

Petitioners,

v.

Industrial Claim Appeals Office of the State of Colorado and Christopher Pierce,

Respondents.

ORDERS SET ASIDE AND CASE
REMANDED WITH DIRECTIONS

Division II
Opinion by JUDGE RICHMAN
Dailey and Brown, JJ., concur

Announced January 16, 2020

Harvey D. Flewelling, Denver, Colorado, for Petitioners

No Appearance for Respondent Industrial Claim Appeals Office

Burg 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.

I. Background Facts

¶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

1
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

advance.

• 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.

2
• Pella did not withhold taxes from the checks it wrote to

CP; claimant was responsible for paying any taxes he or

CP incurred.

• Claimant obtained and paid for his own liability

insurance.

• 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 coverage.

¶6 By contrast, other factors evidenced claimant’s dependence on

Pella’s business:

• CP Window Service had no employees other than

claimant.

• Customers paid Pella for the service work, not CP.

3
• 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

2012.”

• Claimant testified that Pella work kept him busy full

time, leaving him no time or opportunity to accept other

work.

• 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

4
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.

II. Procedural History

¶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.”

§ 8-40-202(2)(b)(IV).

5
¶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

6
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

7
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 liability
insurance.

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 evidentiary

proceedings.”

¶ 12 On remand a few months later, ALJ Jones conducted a second

hearing and admitted additional evidence. She again weighed the

8
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, obtained his own liability insurance, and was free to

accept or reject Pella’s projects.

¶ 13 She expressly found that claimant had failed to show “that he

was not free from control and direction in the performance of his

services” and failed to show that “he was not customarily engaged

in an independent trade or business.” To support these findings,

she found that Pella was not aware that claimant was working

exclusively for it. She also found again that Pella no longer

provided claimant with tools, although she found that it did provide

him with materials necessary for jobs he accepted. But she pointed

out that the sixth factor of the nine factor test addresses provision

of tools and benefits, not the provision of materials.

9
¶ 14 She therefore concluded that “the nature of the working

relationship in this case shows that it was an independent

contractor/employer relationship.”1

¶ 15 In an order issued April 26, 2016, the Panel rejected ALJ

Jones’ reasoning a second time. The Panel reiterated its

determination that Softrock applies to workers’ compensation cases,

noting that

[t]he intent of the sponsors [of the legislation]
was to have both [section] 8-70-115 and
[section] 8-40-202(2)(b)(II) construed in a
similar fashion, but only to the extent a court
was applying the nine factors. The Softrock
decision in 2014 was interpreting the nine
factors included in [section] 8-70-115, which
also appear in [section] 8-40-202(2)(b)(II).
Applying that decision to the application of
either statute cannot be seen as contrary to
the intent of the General Assembly.

The Panel then went on to conclude that ALJ Jones’ conclusions of

law were “unsupported by substantial evidence in the record.” The

Panel chastised ALJ Jones for “[p]ermitting the label rather than the

actual nature of the relationship to control” and criticized her

1 The ALJ did not address whether claimant “had a financial
investment such that there was a risk of suffering a loss on the
project,” but neither did the Panel in its review.

10
reliance on “the documents executed by the parties in March,

2009[,]” as indicative of claimant’s “independent business . . .

[despite] the absence of evidence in the record that claimant ever

took any steps to “create an independent business. The Panel

reasoned that Pella’s motivation for entering into a contractual

relationship with claimant and the other service technicians “was to

save money on payroll expenses.” It further observed that, under

the parties’ agreement, “claimant simply performed the same job he

had prior to 2009, but was paid in a different manner.” It deemed

claimant’s injury compensable. Because the parties had stipulated

to claimant’s average weekly wage, claimant’s award was calculable.

¶ 16 Pella subsequently appealed the Panel’s decision to this court.

However, because the Panel’s order had not reduced claimant’s

award to a sum certain, the appeal was dismissed without

prejudice. Pella Windows & Doors, Inc. v. Indus. Claim Appeals

Office, (Colo. App. No. 16CA0845, Mar. 2, 2017) (not selected for

publication pursuant to C.A.R. 35(e)).

¶ 17 In the second remand, ALJ Kara Cayce entered a brief order

dated February 2, 2018, approving the parties’ stipulation;

awarding claimant $800 per week in temporary total disability (TTD)

11
benefits from December 12, 2013, through May 31, 2014; deducting

$186.23 from the TTD award after June 1, 2014, as an offset

against the social security disability benefit claimant began

receiving that month; and ordering Pella to pay claimant TTD

benefits of $613.77 per week thereafter and continuing. However,

ALJ Cayce crossed out language on the order notifying the parties

of their right to seek review.

¶ 18 Nevertheless, Pella sought the Panel’s review of this order. The

Panel issued its final order on September 24, 2018. Because ALJ

Cayce had stricken language in the order advising the parties of

their appeal rights, one member of the Panel characterized the order

as a summary order necessitating a request for full findings within

ten days of the order before further appellate review could be taken.

See § 8-43-215, C.R.S. 2019. 2 Pella had not sought review within

the statutory ten-day period. Consequently, one of the two Panel

members reviewing the matter concluded that ALJ Cayce’s order

2 Section 8-43-215, C.R.S. 2019, mandates that any party seeking
review of a summary order must “make a written request for a full
order within ten working days after the date of mailing of the
summary order. The request is a prerequisite to review under
section 8-43-301[, C.R.S. 2019].”

12
was final and unappealable. The other Panel member disagreed

with that characterization and conclusion. But, because she

concurred with the rest of the decision and with the conclusion that

ALJ Cayce’s order should be affirmed, the Panel member’s

disagreement did not change the outcome of the decision. Instead,

the Panel again reiterated its belief that Softrock applied and that

the evidence supported a finding that claimant was an employee

whose on-the-job injury was compensable.

¶ 19 All three of the Panel’s decisions are now before us for review.

Pella asks us to consider whether the Panel erred by concluding

that Softrock applies to workers’ compensation actions. It also

challenges the Panel’s characterization of ALJ Cayce’s order as a

summary order. And, finally, Pella argues that the Panel

overstepped its authority by rejecting ALJ Jones’ finding that

claimant was an independent contractor.

III. Finality of ALJ Cayce’s Order

¶ 20 We first address the Panel’s determination that ALJ Cayce’s

order reducing claimant’s award to a sum certain was a summary

order. In that order, issued after Pella’s first appeal to this court

was dismissed without prejudice, ALJ Cayce stated that she was

13
“reversing this ALJ’s prior order of November 30, 2015, . . .

pursuant to the stipulation of the parties and in order to create a

final and appealable order” and awarded claimant specific TTD

benefits. Nowhere was the order identified as a summary order.

Nothing in the order stated that Pella’s time to seek review was

limited to ten days. Pella, therefore, had no reason to believe it had

to act within ten days to preserve its appellate rights.

¶ 21 But parties are entitled to “notice of a critical determination in

a proceeding.” Patterson v. Indus. Comm’n, 39 Colo. App. 255, 257,

567 P.2d 385, 387 (1977). Notice that an order is characterized as

a summary order requiring a request for full findings within ten

days is a “critical determination” pertinent to the order. “[W]here

the parties, whether employee or employer, are represented in the

administrative proceeding under consideration by attorneys of

record, notice of decisions affecting the substantial rights of the

parties must be given to their attorneys.” Mountain States Tel. &

Tel. Co. v. Dep’t of Labor & Emp’t, 184 Colo. 334, 338, 520 P.2d 586,

588 (1974).

¶ 22 Here, the failure to advise Pella and its counsel that the order

may be considered a summary order subjecting Pella to a ten-day

14
window within which to request full findings violated Pella’s right to

due process under the law. See Hall v. Home Furniture Co., 724

P.2d 94, 96 (Colo. App. 1986) (“Due process is violated when an

attorney of record, through no fault of his own, is denied notice of a

critical determination in his client’s case and by reason thereof fails

to take the procedural steps necessary to preserve his client’s

rights.”).

¶ 23 Accordingly, the determination of Panel member Kroll

characterizing ALJ Cayce’s order as a final, unappealable summary

order improperly deprived Pella of its guaranteed rights to due

process. We therefore set aside that portion of the Panel’s

September 24, 2018, decision and proceed with our review of the

merits of ALJ Cayce’s decision as well as ALJ Jones’ two decisions

and the Panel’s three decisions in this case.

IV. Applicability of Softrock to Workers’ Compensation Actions

¶ 24 Pella contends that the Panel erred by applying the supreme

court’s Softrock decision to this workers’ compensation action. It

argues that Softrock was limited to unemployment cases and that

applying it in the workers’ compensation context violates the

15
General Assembly’s express intent. We are not persuaded that the

Panel erred.

¶ 25 Prior to Softrock’s announcement, independent contractor

determinations in unemployment cases often turned on a single

question: whether the worker performed services exclusively or

predominantly for one employer. If that question was answered in

the affirmative, the worker was generally found to be an employee

rather than an independent contractor. See, e.g., Carpet Exch. of

Denver, Inc. v. Indus. Claim Appeals Office, 859 P.2d 278, 282 (Colo.

App. 1993) (holding that because most of the employer’s workers

“were . . . not customarily engaged in the business independent of

their relationship with the company . . . they were not engaged in

an independent business and were, therefore, in covered

employment”), abrogated by Softrock, ¶ 18.

¶ 26 Softrock rejected the use of the dispositive factor test

exemplified by Carpet Exchange. Instead, the supreme court held

that nine factors enumerated in section 8-70-115 of CESA — which

are identical to the nine criteria set out in section 8-40-202(2)(b)(II)

of the WCA — are “indicative of what the General Assembly thought

are important distinctions between employees and independent

16
contractors. As such, we conclude that they should be considered

when determining whether an individual is engaged in an

independent business for the purposes of unemployment insurance

tax liability.” Softrock, ¶ 15. The nine factors listed in the WCA,

and repeated in the CESA, are as follows:

(II) To prove independence it must be shown
that the person for whom services are
performed does not:

(A) Require the individual to work exclusively
for the person for whom services are
performed; except that the individual may
choose to work exclusively for such person for
a finite period of time specified in the
document;

(B) Establish a quality standard for the
individual; except that the person may provide
plans and specifications regarding the work
but cannot oversee the actual work or instruct
the individual as to how the work will be
performed;

(C) Pay a salary or at an hourly rate instead of
at a fixed or contract rate;

(D) Terminate the work of the service provider
during the contract period unless such service
provider violates the terms of the contract or
fails to produce a result that meets the
specifications of the contract;

(E) Provide more than minimal training for the
individual;

17
(F) Provide tools or benefits to the individual;
except that materials and equipment may be
supplied;

(G) Dictate the time of performance; except
that a completion schedule and a range of
negotiated and mutually agreeable work hours
may be established;

(H) Pay the service provider personally instead
of making checks payable to the trade or
business name of such service provider; and

(I) Combine the business operations of the
person for whom service is provided in any way
with the business operations of the service
provider instead of maintaining all such
operations separately and distinctly.

§ 8-40-202(2)(b)(II).

¶ 27 But the supreme court held that the independent contractor

analysis need not be limited to these nine statutory criteria. Citing

the other factors considered in Long View — such as the worker’s

use of business cards, financial risk, setting the price for jobs,

employing others, and carrying liability insurance, Softrock, ¶ 16 —

the supreme court stated that,

[g]iven the wide array of factors that could be
relevant, we conclude that rather than
requiring a rigid check-box type inspection, a
more accurate test to determine if an
individual is customarily engaged in an
independent business involves an inquiry into
the nature of the working relationship. The

18
[Panel] and the Division may consider the nine
factors in section 8-70-115(1)(c) as well as any
other information relevant to the nature of the
work and the relationship between the
employer and the individual. Accordingly, we
decline to adopt the court of appeals’ test that
exclusively considers only the nine factors
enumerated in section 8-70-115(1)(c).

Id. at ¶ 17. Softrock thus expanded the scope of independent

contractor review in the unemployment arena.

¶ 28 As Pella points out, Softrock stated that the issue before it was

“whether an individual is an independent contractor as opposed to

an employee for unemployment tax liability purposes.” Id. at ¶ 1.

Nowhere does Softrock mention or discuss its applicability to

workers’ compensation cases.

¶ 29 Indeed, Softrock’s underlying premise — that an independent

contractor analysis cannot be based on a single, dispositive factor

— is not of concern in the workers’ compensation context. Unlike

the CESA, the WCA expressly prohibits such a singular analysis:

“The fact that an individual performs services exclusively or

primarily for another shall not be conclusive evidence that the

individual is an employee.” § 8-40-102(2), C.R.S. 2019.

19
Consequently, the Panel analysis that was challenged in Softrock is

not at issue in the worker’s compensation arena.

¶ 30 Pella also correctly notes several dissimilarities between the

CESA and the WCA which suggest that the legislature intended

independent contractor analysis to be limited to the WCA’s nine

criteria.

¶ 31 First, the CESA applies the nine criteria to “a written

document, signed by both parties.” § 8-70-115(1)(c). In contrast,

the WCA applies the factors to an analysis of the relationship

between the parties. However, this distinction is essentially

rendered moot by Softrock, which held them “indicative of . . .

important distinctions between employees and independent

contractors.” Softrock, ¶ 15. Thus, after Softrock, the nine criteria

are no longer limited to written documents; they can be applied to

the relationship between the parties, just as they are in the WCA.

See id.

¶ 32 Second, in 1993, the legislature expressly added language to

the WCA permitting consideration of independent contractor cases

that arose in the unemployment context. The statute was amended

to provide as follows:

20
The general assembly hereby finds that the
determination of whether an individual is an
employee for purposes of the “Workers’
Compensation Act of Colorado” is subject to a
great deal of speculation and litigation. It is
the intent of the general assembly to provide
an easily ascertainable standard for
determining whether an individual is an
employee. In order to further this objective,
the test for determining whether an individual
is an employee for the purposes of the
“Workers’ Compensation Act of Colorado” is
based on the criteria found in section 8-70-
115. It is the intent of the General Assembly
that when determining whether an individual
is an employee only the factors specified in
section 8-40-202(2) [the nine criteria set forth
above] and any case law which has construed
the provisions of section 8-70-115 are to be
considered.

Ch. 103, sec. 1, § 8-40-102(2), 1993 Colo. Sess. Laws 355

(emphasis added). However, the italicized language was removed by

legislative amendment just two years later. The amended legislative

declaration read as follows, and still so reads today:

The general assembly hereby finds that the
determination of whether an individual is an
employee for purposes of the “Workers’
Compensation Act of Colorado” is subject to a
great deal of speculation and litigation. It is
the intent of the general assembly to provide
an easily ascertainable standard for
determining whether an individual is an
employee. In order to further this objective,
the test for determining whether an individual

21
is an employee for the purposes of the
“Workers’ Compensation Act of Colorado” shall
be based on the nine criteria found in section
8-40-202(2)(b)(II) which shall supersede the
common law. The fact that an individual
performs services exclusively or primarily for
another shall not be conclusive evidence that
the individual is an employee.

Ch. 112, sec. 1, § 8-40-102(2), 1995 Colo. Sess. Laws 343. The

removal of the language can be interpreted as a signal from the

General Assembly that hearing examiners and litigators should not

look to the CESA for guidance when assessing whether a worker is

an employee or an independent contractor for workers’

compensation purposes.

¶ 33 Last, the legislative declaration expressly states that, in

workers’ compensation cases, the test for independent contractors

“shall be based on the nine criteria found in section

8-40-202(2)(b)(II).” Id. This, too, could be interpreted as the

legislature’s attempt to limit the analysis to the nine factors. And,

certainly, Pella so argues.

¶ 34 But we are not persuaded this legislative declaration or the

differences between the CESA and WCA necessitate limiting the

scope of independent contractor analysis. As the Panel suggests,

22
“based on” as used in section 8-40-102(2) does not necessarily

mean “exclusively.” On the contrary, the dictionary definition of

“based on” is “to find a foundation or basis for” and refers to “the

fundamental part of something.” Merriam-Webster Dictionary,

https://perma.cc/YXY6-8YZT.

¶ 35 Other courts have followed the dictionary’s expansive

denotation of the term “based on.” See McDaniel v. Chevron Corp.,

203 F.3d 1099, 1111 (9th Cir. 2000) (in reviewing the applicability

of mortality tables, the Ninth Circuit adopted an interpretation of

“based on” as referring “to a ‘starting point’ or a ‘foundation’” in

holding that mortality tables could be used as a “starting point” for

calculating mortality assumptions); Mount Vernon Fire Ins. Co. v.

Creative Hous. Ltd., 668 N.E.2d 404, 405 (N.Y. 1996) (an insurance

policy that excluded claims “based on assault or on battery” was

held to exclude negligence claims arising out of an assault as well

as intentional torts); see also Freeman v. United States, 564 U.S.

522, 535 (2011) (Sotomayor, J., concurring) (“To ask whether a

particular term of imprisonment is ‘based on’ a Guidelines

sentencing range is to ask whether that range serves as the basis or

foundation for the term of imprisonment.”).

23
¶ 36 Thus, by using the term “based on,” the legislature signaled

that the nine factors would provide a fundamental baseline upon

which to premise the independent contractor analysis. If the

legislature had intended litigants to be limited exclusively to the

nine statutory criteria, it could have so stated by omitting the term

“based on” and instead stating simply that fact finders must

analyze these nine factors when weighing whether a worker is an

independent contractor. See, e.g., Young v. Brighton Sch. Dist. 27J,

2014 CO 32, ¶ 20 (“Had the legislature intended the waivers to be

mutually exclusive, it would have affirmatively expressed this intent

in the plain language of the statute.”); Montez v. People, 2012 CO 6,

¶ 20 (“Had the legislature intended that firearms be deadly weapons

per se — or, equivalently, that for a firearm to be a deadly weapon

its manufacturer must intend it to be used in a manner capable of

producing death or serious bodily injury, and that all firearm

manufacturers do so intend — the legislature could have expressed

that intent in any number of ways.”). Because the legislature chose

to use the broader term “based on,” we conclude that the legislature

left room for consideration of other factors beyond the nine

enumerated criteria.

24
¶ 37 Moreover, although our goal in statutory analysis is to give

effect to the legislature’s intent, see Davison v. Indus. Claim Appeals

Office, 84 P.3d 1023, 1029 (Colo. 2004), we are also bound to follow

the supreme court where it has determined the legislature’s intent.

See In re Estate of Ramstetter, 2016 COA 81, ¶ 40 (“[T]he court of

appeals is ‘bound to follow supreme court precedent.’” (quoting

People v. Gladney, 250 P.3d 762, 768 n.3 (Colo. App. 2010))).

¶ 38 In Softrock, ¶ 17, the supreme court held that fact finders

assessing the independence of a worker were not limited to the nine

statutory criteria but could weigh additional factors. Given that the

nine factors are identical in both the CESA and the WCA, and that

the factors in both circumstances are used to consider how

enmeshed the worker is with the putative employer, we must apply

Softrock to this case.

¶ 39 We therefore conclude that the Panel did not err when it

determined that ALJ Jones should have considered the Softrock

factors in weighing whether claimant’s business was independent of

Pella. And, where the Panel’s interpretation is reasonable and is

not inconsistent with the legislative intent, we generally defer to it.

See Sanco Indus. v. Stefanski, 147 P.3d 5, 8 (Colo. 2006); Support,

25
Inc. v. Indus. Claim Appeals Office, 968 P.2d 174, 175 (Colo. App.

1998).

V. The Panel Exceeded Its Authority

¶ 40 Having determined that the Panel correctly remanded the

matter to ALJ Jones for consideration of the Softrock factors, we

turn to the Panel’s 2016 post-remand order. As noted above, in

that order, the Panel reiterated its conclusion that Softrock applies

in the workers’ compensation context. The Panel then went on,

though, to hold that “the ALJ’s conclusions of law [are]

unsupported by substantial evidence in the record.” The Panel

criticized ALJ Jones for reasoning

that because claimant was allowed by the
documents executed by the parties in March,
2009, to operate an independent business, he
therefore was engaged in an independent
business. This finding is belied by the absence
of evidence in the record that the claimant ever
took any steps to do so.

¶ 41 The Panel continued its discussion by analyzing and

categorizing the evidence. Among its observations, the Panel noted

the following:

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• Claimant expressed no interest in being an independent

contractor or getting laid off; he just wanted to keep

working.

• Claimant did not shop for his van. “He received the van

from the respondent.”

• He did not finance the van, but instead paid Pella for it.

• He did not have a business card.

• Pella dictated the price of each job.

• Claimant only set up his business and registered his

business name after Pella laid him off.

• Claimant used his personal cell phone for business

purposes.

• Pella scheduled customers’ jobs.

¶ 42 While all these facts may be true, the Panel’s analysis ignored

other facts found by ALJ Jones. For example, ALJ Jones found that

• Claimant obtained his own liability insurance.

• He knew he could work for others if time permitted.

• He received only minimal training from Pella.

• He could rearrange his schedule.

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• He was paid through CP and issued invoices to Pella

through CP.

• He paid for his own phone.

• He received no benefits from Pella.

• Pella encouraged service technicians to seek other work

and did not know that claimant worked exclusively for it.

• Claimant himself told hospital staff, doctors, and the

social security administration that he was an

independent contractor, suggesting that he did not

believe he was Pella’s employee at the time of his injury.

The Panel did not address any of these findings.

¶ 43 Likewise, the Panel disregarded ALJ Jones’ credibility

determinations. Notably, ALJ Jones referred to claimant’s

testimony that, after signing the service contract with Pella, he was

unable “to reject some jobs and accept others.” But, she noted,

Brian McHugh, an employee of Pella, directly contradicted

claimant’s assertion. ALJ Jones expressly found Mr. McHugh’s

testimony credible and persuasive. Conversely, she described “the

testimony of [c]laimant, overall, is not found as credible or

persuasive.”

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¶ 44 When reviewing an ALJ’s decision, the Panel must adhere to

the authority granted it by statute. The Panel may only “correct, set

aside, or remand” an ALJ’s order on the grounds that

the findings of fact are not supported by the
evidence; that the findings of fact do not
support the order; or that the award or denial
of benefits is not supported by applicable law.
If the findings of fact entered by the director or
administrative law judge are supported by
substantial evidence, they shall not be altered
by the [P]anel.

§ 8-43-301(8), C.R.S. 2019. Whether a worker is an independent

contractor “is a factual determination for resolution by the ALJ.”

Nelson v. Indus. Claim Appeals Office, 981 P.2d 210, 213 (Colo. App.

1998). Therefore, like us, the Panel “must uphold the ALJ’s

findings of fact if such are supported by substantial evidence in the

record.” Id. Likewise, the Panel “must defer to the ALJ’s resolution

of conflicts in the evidence, credibility determinations, and the

plausible inferences that [s]he drew from the evidence.” Id. And the

ALJ’s credibility determinations cannot be set aside unless the

evidence is “overwhelmingly rebutted by hard, certain evidence” to

the contrary. Arenas v. Indus. Claim Appeals Office, 8 P.3d 558,

561 (Colo. App. 2000); see also Youngs v. Indus. Claim Appeals

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Office, 2012 COA 85M, ¶ 46 (“Nor may we set aside a ruling

dependent on witness credibility where the testimony has not been

rebutted by other evidence.”).

¶ 45 The Panel disregarded ALJ Jones’ factual findings and

credibility determinations to enter findings of its own. ALJ Jones

followed the Panel’s remand order, conducted a second hearing, and

considered the evidence in light of both the nine statutory criteria

and the Softrock factors. Indeed, ALJ Jones’ November 2015

post-remand order is twenty-one pages long, contains fifty

numbered paragraphs of fact findings, and ten pages of conclusions

of law. It appears to us to be a thorough analysis of all the

applicable factors.

¶ 46 Accordingly, we conclude that the Panel exceeded its authority

by reweighing the evidence presented before ALJ Jones. Even

though the Panel may not have agreed with ALJ Jones’ decision,

substantial evidence supported her factual findings and credibility

determinations. The Panel was therefore bound by them and

should not have set aside the November 2015 order. See

§ 8-43-301(8); Nelson, 981 P.2d at 213. Having determined that the

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Panel exceeded its authority when it set aside ALJ Jones’ November

2015 order, we need not reach the merits of ALJ Cayce’s order.

VI. Conclusion

¶ 47 The Panel’s final orders of April 26, 2016, and September 24,

2018, are set aside, and the case is remanded with directions to

reinstate ALJ Jones’ order of November 25, 2015.

JUDGE DAILEY and JUDGE BROWN concur.

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