No. 06-05168 (2008). MICHAEL R. DUNHAM, Claimant.

• Court: Oregon

Oregon Worker Compensation 2008. No. 06-05168 (2008). MICHAEL R. DUNHAM, Claimant In the Matter of the Compensation of MICHAEL R. DUNHAM, ClaimantWCB Case No. 06-05168, 06-05167, 06-05166, 06-05165ORDER ON REVIEWHooton Wold and Okrent LLP, Claimant Attorneys Scheminske et al, Defense AttorneysReviewing Panel: Members Weddell, Langer, and Herman. Member Langer specially concurs in part.Claimant requests review of Administrative Law Judge (ALJ) Pardington's order that: (1) found that claimant was not a subject worker for the alleged employer; and (2) upheld the insurer's denials of claimant's injury/occupational disease claims for left upper extremity conditions. On review, the issues are subjectivity and, potentially, timeliness of claim filing, and course and scope of employment. We reverse in part and affirm in part. FINDINGS OF FACT We adopt the ALJ's "Findings of Fact," as modified and summarized as follows. From December 2000 through June 2006, claimant drove a truck for the insured, whose business was hauling freight around the country. (Tr. 21, 27). The insured prohibited him from hauling loads for any other company or employer, and claimant was subject to termination if he did so. (Tr. 15). Under an agreement with the insured, claimant leased his tractor to the insured and then used his tractor to pull trailers that were the property of the insured. (Tr. 51). The agreement identified claimant as an "independent contractor." (Ex. A-13). Either party was permitted to terminate the agreement, purportedly with 30 days notice. (Tr. 29-30). In June 2006, the insured terminated claimant without notice. (Id.) In arranging for the hauling of loads, the insured contacted claimant, either by telephone or by a "satellite system" that the insured installed in claimant's tractor. (Tr. 12, 62-63). The insured directed claimant to pick up and deliver loads, providing him with the locations, as well as any time restrictions or requirements for delivery. (Id.) The loads were typically preloaded. (Tr. 15). Claimant had the discretion to hire "lumpers" to assist in the loading and/or unloading of the trailer. (Tr. 15-16, 50; Ex. A-2). He was paid a fixed rate by the insured for manually loading/unloading the truck; if he hired "lumpers" to assist, any payments to the "lumpers" would be deducted from his paycheck. (Id.) Although claimant was responsible for maintaining the tractor and performing necessary repairs, the insured required certain inspections and claimant was required to follow the insured's directives in getting those repairs fixed. (Tr. 18-19, 51). Claimant would not be dispatched until insured-mandated repairs were performed. (Tr. 19). Claimant was required to maintain his commercial driver license. (Tr. 64). The insured provided claimant with other certificates, permits and licenses. (Tr. 26, 63; Ex. A-4). Claimant paid for fuel for the trips, but the insured paid him a fuel surcharge. (Tr. 61; Ex. A-5). Claimant provided tire chains for the tractor; the insured provided tire chains for the trailer. (Tr. 67). Claimant paid for insurance on the tractor, as well as his own workers' compensation coverage that the insured required him to purchase. (Tr. 22, 54). In the absence of the insured's requirement, claimant would not have purchased the workers' compensation policy. (Tr. 68-69). Claimant was paid weekly by way of automatic deposit. (Tr. 19-20). He received a flat amount for hauls within a 150-mile radius; for hauls beyond that, he was paid by the mile. (Tr. 14, 59-60; Ex. A-2). He also received a longevity differential for his years of service for the insured. (Tr. 14). The insured retained the right to unilaterally modify or terminate compensation rates and assorted fees; claimant was to be provided 30 days written notice before the effective date of those changes. (Ex. A-12). When driving, claimant was permitted to select his own route and to stop when and where he chose. (Tr. 23, 63). He was subject to, and had been disciplined for, various infractions, specifically driving at excessive speeds. (Tr. 17-18). In March 2005, claimant was attempting to release the insured's trailer from one of his tractors, so that he could place the trailer on another tractor that he preferred to use for shorter hauls. (Tr. 41-43, 51-52, 54-57). He reached under the trailer to pull on the handle of the "fifth wheel." (Tr. 41-43). The handle stuck, requiring a hard pull to release the trailer. (Tr. 42). After he pulled hard on the handle, "everything * * * popped out of place" and he immediately experienced left upper extremity symptoms. (Tr. 43). In October 2005, claimant fell out of the back of the insured's trailer after sweeping it out. (Tr. 44-45). He experienced shoulder, neck and arm problems. (Tr. 45). In June 2006, he experienced more severe upper extremity symptoms after tugging on a trailer to release the trailer axle. (Tr. 46). Whenever he was injured, claimant informed the insured that he was hurt at work. (Tr. 31). He did this for each of the above-described injuries. (Tr. 31). He also notified the carrier of his workers' compensation coverage; the carrier confirmed notice of the injury and copied the insured on that confirmation. (Ex. 9A). While out on disability, claimant also submitted time loss forms to the insured. (Tr. 40). Claimant treated with Drs. Bald and Wood for his injuries. Both doctors opined that his injuries were the causes of the disability and need for treatment for multiple upper extremity conditions. (See Exs. 48-5, -10; 49-10, -11). The insurer denied claimant's 2005 injury claims and 2006 injury and occupational disease claims. Among other contentions, the insurer asserted that claimant was not a subject worker. Claimant requested a hearing. CONCLUSIONS OF LAW AND OPINION The ALJ concluded that claimant was not a "worker" within the meaning of ORS 656.005(30).(fn1) Accordingly, the ALJ upheld all of the insurer's denials. On review, claimant asserts that, under the judicially created "right to control" test, he was a "worker." The insurer disagrees and contends, in the alternative, that claimant was a "non-subject worker" under ORS 656.027(7) and (15). The insurer also asserts that claimant's injuries did not occur "in the course of employment" and that his claims were untimely filed. As explained below, we disagree with the ALJ's conclusion that claimant was not a "worker." We nevertheless affirm the ALJ's decision to uphold the denials for the 2006 injury and occupational disease claims because claimant was not a "subject worker" for purposes of those claims. However, we set aside the denials for the 2005 injury claims, finding those claims timely filed and concluding that claimant was a "subject worker" who was injured in the course of his employment. We reason as follows. Timeliness A claimant is required to give the employer notice of an accident resulting in an injury within 90 days after the accident. ORS 656.265(1). A claim is generally barred unless notice is given within 90 days. ORS 656.265(4). Notice may be oral or in writing. Godfrey v Fred Meyer Stores, 202 Or App 673 (2005), rev den, 340 Or 672 (2006), on remand, Karen M. Godfrey, 58 Van Natta 2892 (2006), aff'd Fred Meyer Stores v. Godfrey, 218 Or App 496 (2008); Dennis G. Holtz, 60 Van Natta 1008, 1009 (2008). Although acknowledging that claimant may orally notify the insured of an injury, the insurer argues that claimant did not explain precisely what he told the insured about the nature of the alleged 2005 injuries. We disagree that claimant's reporting was insufficient to notify the employer that there was a possible relationship between the injuries and the employment. See Keller v. SAIF, 175 Or App 78, 83 (2001), rev den, 333 Or 260 (2002) (notice need only provide a "possible relationship" between the injury and the employment). Here, claimant testified that when he was injured, he called the office and told them that he was hurt at work. (Tr. 31). He did this every time that he was injured. (Id.) The insurer did not rebut this testimony. Claimant also submitted time loss forms to the insured and believed that he also provided the insured with an accident report.(fn2) (Tr. 39-40). Based on this particular record, we find the foregoing facts sufficient to put the insured on notice of a "possible relationship" between the alleged 2005 injuries and the employment. We particularly emphasize claimant's unrebutted testimony that he informed the insured when he was "hurt at work." (Tr. 31). To timely notify the insured, claimant was not required to provide a more detailed or precise explanation of how each injury occurred. See Keller, 175 Or App at 83 (to provide notice of a potentially compensable injury, a claimant need not "include detailed elements of the occurrence necessary to determine coverage under the act"). Accordingly, we conclude that claimant's 2005 injury claims were timely filed. Subjectivity We first determine whether an individual is a "worker" before determining whether that "worker" is a "non-subject" worker pursuant to 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). If the initial determination is that the individual is a worker, we determine whether the worker is "non-subject" under one of the exceptions of ORS 656.027. Id. at 630-31. When deciding whether an individual is a worker, we must determine whether the...