Atwood v. State Accident Insurance Fund

Court of Appeals of Oregon

Atwood v. State Accident Insurance Fund

547 P.2d 191, 24 Or. App. 803, 1976 Ore. App. LEXIS 2453

CourtCourt of Appeals of Oregon

DecidedMarch 22, 1976

DocketNo. 75-1710-E-3, CA 5247

StatusPublished

Cited by2 cases

This text of 547 P.2d 191 (Atwood v. State Accident Insurance Fund) 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

Atwood v. State Accident Insurance Fund, 547 P.2d 191, 24 Or. App. 803, 1976 Ore. App. LEXIS 2453 (Or. Ct. App. 1976).

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Opinions

LANGTRY, J.

This is a claimant appeal from successive orders of a referee, the Workmen’s Compensation Board and the circuit court, each holding that claimant, a logging truck operator, was an independent contractor, and not an employe. Claimant was injured in May 1974 while logs were being unloaded from his truck. He owned the truck and hauled logs from the woods to the log dump under almost identical circumstances as those related in our recent opinion in Woody v. Waibel, 24 Or App 341, 545 P2d 889 (1976). This is so even to the fact that the "employer” had never provided workmen’s compensation, or had never engaged in any type of withholding from pay for taxes, etc., as is commonly done by an employer. Claimant had always done his own tax and other kinds of bookkeeping, and had himself made the payments. For three years he had made his own payments for workmen’s compensation coverage, along with payments that covered anyone who might briefly work for him. At the time of his injury he had let his own coverage payments lapse, but had kept up the coverage in the same way as previously for other employes. The totality of these actions by "employer” and claimant indicates to us that there was some understanding — regardless of whether it was clearly spelled out — that the employer would not provide coverage. This is different than a situation where the employer unilaterally says, "I won’t provide coverage” and by that unilateral declaration presumes to change what otherwise would be an employe-employer relationship.

The primary determination in cases like this depends on the initial tests set out in Bowser v. State Indus. Accident Comm., 182 Or 42, 185 P2d 891 (1947), which we applied in Woody, and which we have primarily compared to the facts in this case. Where the result is close, as it is here, then other tests, like the evidence of a tacit agreement such as we have men[806]*806tioned, are some additional evidence of the nature of the relationship.

Affirmed.

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LANGTRY, J.

This is a claimant appeal from successive orders of a referee, the Workmen’s Compensation Board and the circuit court, each holding that claimant, a logging truck operator, was an independent contractor, and not an employe. Claimant was injured in May 1974 while logs were being unloaded from his truck. He owned the truck and hauled logs from the woods to the log dump under almost identical circumstances as those related in our recent opinion in Woody v. Waibel, 24 Or App 341, 545 P2d 889 (1976). This is so even to the fact that the "employer” had never provided workmen’s compensation, or had never engaged in any type of withholding from pay for taxes, etc., as is commonly done by an employer. Claimant had always done his own tax and other kinds of bookkeeping, and had himself made the payments. For three years he had made his own payments for workmen’s compensation coverage, along with payments that covered anyone who might briefly work for him. At the time of his injury he had let his own coverage payments lapse, but had kept up the coverage in the same way as previously for other employes. The totality of these actions by "employer” and claimant indicates to us that there was some understanding — regardless of whether it was clearly spelled out — that the employer would not provide coverage. This is different than a situation where the employer unilaterally says, "I won’t provide coverage” and by that unilateral declaration presumes to change what otherwise would be an employe-employer relationship.

The primary determination in cases like this depends on the initial tests set out in Bowser v. State Indus. Accident Comm., 182 Or 42, 185 P2d 891 (1947), which we applied in Woody, and which we have primarily compared to the facts in this case. Where the result is close, as it is here, then other tests, like the evidence of a tacit agreement such as we have men[806]*806tioned, are some additional evidence of the nature of the relationship.

Affirmed.

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547 P.2d 191, 24 Or. App. 803, 1976 Ore. App. LEXIS 2453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/atwood-v-state-accident-insurance-fund-orctapp-1976.

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