In re Ghelan, 112718 ORWC, 17-02689

Docket Nº:WCB 17-02689
Case Date:November 27, 2018
In the Matter of the Compensation of VLADMIR V. GHELAN, Claimant
WCB No. 17-02689
Oregon Worker Compensation
November 27, 2018
          Guinn Law Team, Claimant Attorneys           Anderson & Yamada PC, Employer Attorneys           Sheridan Levine LLP, Defense Attorneys           Reviewing Panel: Members Woodford and Ousey.           ORDER ON REVIEW          Claimant requests review of Administrative Law Judge (ALJ) Sencer’s order that: (1) determined that claimant was a nonsubject worker under ORS 656.027(15); and (2) set aside Sedgwick Claims Management Service’s acceptance (on behalf of the noncomplying employer (NCE)) of claimant’s injury claim. On review, the issue is subjectivity.          We adopt and affirm the ALJ’s order with the following supplementation.          On March 24, 2017, the Workers’ Compensation Division (WCD) issued a “Proposed and Final Order,” finding the alleged employer to be “noncomplying” and assessing a civil penalty. (Ex. 38). On April 3, 2017, the NCE requested a hearing contesting WCD’s order and claimant’s status as a subject worker. (Hearings file.) On April 19, 2017, the NCE and WCD entered into a stipulation that: (1) affirmed WCD’s “NCE” order; (2) reserved the NCE’s right to contest the subject worker status of claimant; and (3) reduced the NCE’s civil penalty. (Ex. 44).          The issue at hearing concerned the NCE’s contention that claimant was not a subject worker. (Tr. 4).          Applying the “right to control test,” the ALJ determined that claimant was a “worker” within the meaning of ORS 656.005(30). However, reasoning that claimant had an ownership interest in a motor vehicle used in transportation of property by a for-hire motor carrier, which he furnished, maintained, and operated, the ALJ concluded that claimant was a nonsubject worker under ORS 656.027(15)(c).[1]          On review, claimant contends that he did not have a “bona fide” ownership in the truck that he operated. Based on the following reasoning, we disagree.          Claimant testified that he had previously worked as an...

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