Clausing v. K-Mart Corporation

926 P.2d 337, 144 Or. App. 552, 1996 Ore. App. LEXIS 1719

• Court: Court of Appeals of Oregon
• Decided: November 20, 1996
• Docket: 95-04958; CA A92152
• Status: Published

Opinion

LEESON, J.

Claimant seeks review of a Workers’ Compensation Board order that reinstated K-Mart Corporation’s denial of his claim. ORS 656.298. The question is whether K-Mart is responsible under ORS 656.029(1) for providing workers’ compensation coverage for claimant. The Board concluded that it is not.

Claimant worked for a company that contracted with K-Mart to provide janitorial services. Claimant was injured while cleaning one of K-Mart’s stores. ORS 656.029(1) requires that

“If a person awards a contract involving the performance of labor where such labor is a normal and customary part or process of the person’s trade or business, the person awarding the contract is responsible for providing workers’ compensation insurance coverage for all individuals * * * who perform labor under the contract * * (Emphasis supplied.)

Claimant and intervenor correctly point out that the Board’s order does not show whether it considered OAR 436-050-0040(4)(c), which interprets the phrase “normal and customary part or process of the person’s trade or business” to mean “the day-to-day activities or operations which are necessary to successfully carry out the business or trade.” The Department of Consumer and Business Services promulgated that rule pursuant to ORS 656.726(3). Properly promulgated administrative rules have the force of law. Bronson v. Moonen, 270 Or 469, 476, 528 P2d 82 (1974). Accordingly, we remand to the Board to consider the facts of this case in the light of that rule.

Because of this disposition, we need not address respondent’s cross-assignment of error.

Reversed and remanded.