In re Compensation of WARD, 043019 ORWC, 17-03591

Docket Nº:WCB 17-03591
Case Date:April 30, 2019
Court:Oregon
 
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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...

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