Anfilofieff v. State Accident Insurance Fund Corp.

627 P.2d 1274, 52 Or. App. 127, 1981 Ore. App. LEXIS 2487
CourtCourt of Appeals of Oregon
DecidedMay 11, 1981
DocketNo. 78-4612, CA 17980
StatusPublished
Cited by17 cases

This text of 627 P.2d 1274 (Anfilofieff v. State Accident Insurance Fund Corp.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Anfilofieff v. State Accident Insurance Fund Corp., 627 P.2d 1274, 52 Or. App. 127, 1981 Ore. App. LEXIS 2487 (Or. Ct. App. 1981).

Opinions

RICHARDSON, J.

In this workers’ compensation case, the State Accident Insurance Fund (SAIF) seeks review of an order of the Workers’ Compensation Board (Board) finding claimant suffered a compensable injury. SAIF contends that claimant was not a subject worker as defined in ORS 656.027(2) and, therefore, not entitled to compensation. Claimant cross-petitions, claiming the Board erred in failing to award, or even address the issue of, statutory penalties for employer’s alleged unreasonable resistance and delay in providing compensation. We review de novo, ORS 656.298(6); Coday v. Willamette Tug & Barge, 250 Or 39, 440 P2d 224 (1968); Brenner v. Industrial Indemnity Co., 30 Or App 69, 566 P2d 530 (1977), and affirm as modified.

Claimant suffered a severe laceration to his left hand while at employer’s residence on January 10, 1978. On March 20, 1978, he submitted a claim for benefits on a standard claim form. The form provided space for both claimant and employer to describe how the injury occurred. Claimant answered that he was standing on a ladder nailing corrogated metal siding to the side of a bath house at employer’s home when the ladder slipped, causing him to fall. He stated that his hand was lacerated on a piece of the siding. Employer answered that claimant had stopped to visit him at his residence and cut his hand while helping employer carry a fence gate. On June 2,1978, SAIF denied claimant’s claim for the stated reason that claimant was not an employee of employer at the time of his injury and, therefore, not a "subject worker” entitled to compensation under the Workers’ Compensation Law. Claimant requested a hearing on June 16, 1978.

As stated in the referee’s opinion and order, the issue for determination was whether claimant sustained an injury arising out of and in the course of his employment for employer, on January 10, 1978. There was no dispute that claimant suffered an injury on that date while on employer’s premises. The questions in dispute were (1) whether claimant was an employee and (2) how the injury occurred.

There was a substantial conflict in the evidence presented by the parties. Claimant did not speak English [130]*130and testified through an interpreter. He testified that he began work for employer, who was a home builder, in December, 1977, as a carpenter. He stated that his salary was $5 per hour and that he earned approximately $215 prior to his injury, of which $175 was paid in the form of a cow. All payments, other than the cow, were in cash and employer neither withheld taxes nor social security.

Claimant stated that on the morning of January 10,1978, he and his son appeared at employer’s residence to be transported to a housing project on which claimant was working for employer. Upon his arrival, employer told claimant thát he was to work on a bath house located on employer’s property, while employer ran some errands. Claimant testified that he was told that when employer returned, they would go to the housing project. Claimant worked six and a half hours, first covering the bath house floor and, later, nailing up corrogated metal siding. He testified that he lacerated his hand on the siding trying to catch himself after the ladder on which he was standing slipped.

Employer testified that he never had employed claimant. He further stated that on January 10, 1978, claimant had come to his premises to visit, that he had asked claimant to assist him in moving a fence gate and that while handling the gate, claimant cut his hand. He denied claimant was either on a ladder or working on the bath house. He stated that the bath house had no corrogated metal siding and that, in fact, the exterior of the structure was covered with plywood. He also offered the testimony of a representative of the Workers’ Compensation Department, who stated that he had visited the premises four months after the injury and that, at that time, the bath house was covered with plywood siding.

Claimant’s testimony was corroborated by his son. Claimant also offered testimony of an investigator for employer’s personal liability carrier, who had visited the premises and taken photographs of the area within a few days after claimant’s injury. The investigator stated that at the time of his visit, the bath house was partially covered with corrogated metal siding laid over the plywood siding and that he observed a piece of the metal siding on the ground adjacent to a ladder lying on the ground.

[131]*131Following the injury, employer took claimant to a doctor and then to a hospital. Employer, who spoke claimant’s native language, acted as an interpreter. Both claimant and his son testified that employer told claimant to tell the doctors that he cut his hand on a gate, or on some glass or on a shovel while digging in the yard. Employer told the treating physician that claimant had cut his hand on some glass. Later, when claimant was taken to a hospital for further treatment, employer stated, according to the hospital record, that the injury occurred while claimant was repairing a gate on employer’s farm. Claimant testified that employer told him on one other occasion to tell even a different version of how the injury occurred.

The referee, who had the chance to observe the witnesses, found that the testimony of the employer was "not credible, and, in fact, that his version of these events is a deliberate falsification to avoid his responsibility as an employer.” Because we have only the record to review, we give great weight to such findings, especially in a case such as this, where credibility is an important issue. Miller v. Granite Construction Co., 28 Or App 473, 477, 559 P2d 944 (1977); Fredrickson v. Grandma Cookie Co., 13 Or App 334, 337-38, 509 P2d 1213 (1973).

We agree that employer’s entire story is suspect. The credible testimony, supported by the medical evidence, leads to the conclusion that claimant’s injury occurred as he described. We also agree with the Board’s determination that claimant was employed by employer at the time he was injured. We turn then to the Board’s determination that claimant was a "subject worker” at the time of his injury and entitled to compensation under the Workers’ Compensation Law.

SAIF argues that even assuming claimant was employed by employer at the time of his injury, he is not entitled to compensation because he was a "nonsubject worker” as defined in ORS 656.027(2):

"All workers are subject to ORS 656.001 to 656.794 except those nonsubject workers described in the following subsections:
"(2) A worker employed to do gardening, maintenance, repair, remodeling or similar work in or about the private home of the person employing him.”

[132]*132SAIF contends that ORS 656.027(2) describes the only conceivable employment relationship between the parties and, therefore, controls the disposition of claimant’s claim. We disagree. Though a wide variety of employment activities may fall within this "householders exemption,”

Free access — add to your briefcase to read the full text and ask questions with AI

Related

SAIF v. Coria
528 P.3d 785 (Oregon Supreme Court, 2023)
SAIF v. Coria
500 P.3d 42 (Court of Appeals of Oregon, 2021)
SAIF Corp. v. Hall (In re Hall)
410 P.3d 396 (Court of Appeals of Oregon, 2018)
Department of Consumer & Business Services v. Muliro
380 P.3d 270 (Oregon Supreme Court, 2016)
DCBS v. Muliro
Oregon Supreme Court, 2016
Royer v. Touch of Grey Ranch
369 P.3d 1226 (Court of Appeals of Oregon, 2016)
Department of Consumer & Business Services v. Muliro
341 P.3d 131 (Court of Appeals of Oregon, 2014)
Progressive Casualty Insurance v. Marca
788 P.2d 490 (Court of Appeals of Oregon, 1990)
Gordon v. Farrell
737 P.2d 654 (Court of Appeals of Oregon, 1987)
Nix v. State Accident Insurance Fund
723 P.2d 366 (Court of Appeals of Oregon, 1986)
Bush v. State Accident Insurance Fund Corp.
680 P.2d 1010 (Court of Appeals of Oregon, 1984)
Van Horn v. Jerry Jerzel, Inc.
674 P.2d 617 (Court of Appeals of Oregon, 1984)
Fincham v. Wendt
651 P.2d 159 (Court of Appeals of Oregon, 1982)
Humphrey v. State Accident Insurance Fund
648 P.2d 367 (Court of Appeals of Oregon, 1982)
Matter of Compensation of Condon
629 P.2d 1324 (Court of Appeals of Oregon, 1981)

Cite This Page — Counsel Stack

Bluebook (online)
627 P.2d 1274, 52 Or. App. 127, 1981 Ore. App. LEXIS 2487, Counsel Stack Legal Research, https://law.counselstack.com/opinion/anfilofieff-v-state-accident-insurance-fund-corp-orctapp-1981.