71 Van Natta 484 (2019)
In the Matter of the Compensation of CARL S. WARD, Claimant
WCB No. 17-03591
Oregon Worker Compensation
April 30, 2019
Miller
Law, Claimant Attorneys
SAIF
Legal Salem, Defense Attorneys
Reviewing Panel: En Banc; Members Curey, Lanning, Woodford,
Ousey, and Wold.
ORDER ON REVIEW
Claimant
requests review of Administrative Law Judge (ALJ)
Naugle’s order that: (1) found that claimant was a
nonsubject worker under ORS 656.027(15)(c); and (2) upheld
the SAIF Corporation’s denial of claimant’s
injury claim. On review, the issue is subjectivity. We
reverse.
FINDINGS
OF FACT
We
adopt the ALJ’s “Findings of Fact” with the
following summary and supplementation.
Claimant
worked as a truck driver at Bob Murray Trucking (BMT) between
May and August 2016. (Tr. 4, 63-64). BMT is a for-hire
carrier in the business of hauling wood, steel, and general
commodities. (Tr. 4). Mr. Murray is the owner of BMT. (Tr.
77).
Before
he began driving for BMT, claimant signed an “Operator
Lease/ Independent Contractor Agreement.”[1] (Ex. 1). As
discussed more fully below, claimant leased a tractor truck
from BMT. Pursuant to the parties’ agreement, lease
payments were withheld from claimant’s paychecks. (Ex.
1-7, Tr. 82). Also deducted from claimant’s paychecks
were occupational insurance fees, which claimant was required
to pay pursuant to the agreement, as well as maintenance
fees, which were deducted pursuant to BMT’s elective
in-house service plan. (Ex. 1-8, -14; Tr. 83). Claimant was
compensated at a rate of 37 cents per mile. (Tr. 7).
[71 Van
Natta 485] Claimant did not set his own routes while driving;
Murray instructed him which routes to take. (Tr. 18-19). He
was unable to stop whenever he wanted and, if he did make a
stop, Murray would ask him what he was doing. (Tr. 18).
Claimant recalled one instance when he deviated from his
route by 20 miles to escape the heat and Murray “got on
him” about the additional fuel and wear and tear on the
vehicle. (Tr. 22). Another time, when he stopped at a rest
stop to clean up, Murray gave him a “hard time”
and asked why he did not carry soap and water in his truck.
(Tr. 28).
When he
entered into the agreement with BMT, claimant signed to
acknowledge receipt of BMT’s “Driver’s
Manual.” (Tr. 86-87; Ex. H). The manual included, along
with various safety rules, rules of “personal
conduct,” including a rule against carrying passengers
in his vehicle. (Ex. H-10). Claimant was required to get
permission to bring his girlfriend, which Murray granted on
the condition that she stay out of shippers’ and
receivers’ offices. (Tr. 22). Claimant was expected to
keep his truck clean and he was instructed to clean the
inside of his truck on more than one occasion. (Tr. 26).
Claimant was required to wear jeans and boots while working
and was not allowed to wear shorts, flip-flops, or tank tops.
(Tr. 26).
Claimant
was required to let Murray know in advance if he was going to
take a day off. (Tr. 25). Murray testified that he expects
his drivers to be available for work when he has it. (Tr.
111). Murray also testified that drivers’ hours of
service are primarily constrained by federal regulations, but
that his dispatchers set appointment times for the drivers
after consulting with them about their schedules. (Tr.
127-128).
BMT
paid for liability insurance on the truck. (Tr. 12, 121). BMT
also covered the costs of fueling the truck and the fuel tax.
(Tr. 12, 98). BMT furnished claimant with various equipment
including a radio, CB, tools, ladder, flashlight, fire
extinguisher, and camera, and $100 for incidental expenses
pertaining to the truck or truck equipment. (Ex. H-25-27).
BMT placed its logo on the driver-side door of the truck and
claimant was not allowed to place his own signage on the
truck. (Tr. 12; Ex. B).
On
August 9, 2016, claimant was hauling a load in the truck when
he had braking difficulties that caused his truck to flip
over, causing severe injuries. (Tr. 32-37; Ex. 4). On June 9,
2017, claimant filed a claim for injuries of the head, neck,
spine, right eye, and right ankle. (Ex. 6). On August 16,
2017, SAIF denied the claim, contending that claimant was not
a subject worker of BMT. (Ex. 7). Claimant requested a
hearing.
[71 Van
Natta 486] CONCLUSIONS OF LAW AND OPINION
The ALJ
concluded that claimant was a “nonsubject” worker
under ORS 656.027(15)(c). Accordingly, the ALJ upheld
SAIF’s denial.
On
review, claimant asserts that he is a “worker”
within the meaning of ORS 656.005(30), and that he is not a
“nonsubject” worker under 656.027(15)(c). SAIF
contends that assuming claimant is a “worker,” he
is a “nonsubject” worker under ORS
656.027(15)(c). For the reasons explained below, we find that
claimant is a “worker,” and is not a
“nonsubject” worker.
We
first determine whether an individual is a
“worker” before analyzing whether the worker is a
“nonsubject” worker falling under one of the
exemptions of ORS 656.027. S-W Floor Cover Shop v. Nat l
Council on Comp. Ins., 318 Or. 614, 630 (1994);
Michael R. Dunham, 60 Van Natta 3455, 3470 (2008).
Claimant has the burden of establishing the existence of an
employment relationship. ORS 656.266(1); Hopkins v.
Kobos, 186 Or.App. 273, 277 (2003).
Pursuant
to ORS 656.005(30), a “worker” is an individual
who engages to furnish services for remuneration,[2] subject to
the direction and control of an employer. See Liberty
Northwest Ins. Corp. v. Church, 106 Or.App. 477, 481,
rev den, 312 Or. 16 (1991); Janee Mendoza,
63 Van Natta 383, 383-84 (2011). In determining whether an
individual is “subject to the direction and
control” of an...
