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...
