     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.


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¶ 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:




                                    26
         • 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.



                                    27
          • 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.”

                                    28
¶ 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



                                    29
  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




                                    30
  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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