Gadalean v. SAIF Corp.

398 P.3d 503, 286 Or. App. 227, 2017 WL 2569856
CourtCourt of Appeals of Oregon
DecidedJune 14, 2017
Docket1403356; A161887
StatusPublished
Cited by2 cases

This text of 398 P.3d 503 (Gadalean v. SAIF 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
Gadalean v. SAIF Corp., 398 P.3d 503, 286 Or. App. 227, 2017 WL 2569856 (Or. Ct. App. 2017).

Opinion

GARRETT, J.

Claimant seeks judicial review of a Workers’ Compensation Board order that concluded that claimant was not eligible for benefits because he was not a “subject worker” at the time of his injury. The issue on appeal is whether the board correctly ruled that claimant was not a worker at the relevant time because he was engaged in a pre-employment evaluation. Claimant acknowledges that he was engaged in an evaluation in anticipation of permanent employment, but contends that, in the course of that evaluation, he was actually “put to work” and performed services for employer, which is sufficient to establish that he “engage [d] to furnish services for a remuneration” within the meaning of ORS 656.005(30).1 We agree with claimant, and reverse and remand the board’s order.

The relevant facts are taken from the board’s order on reconsideration. Claimant applied for a position as a truck driver. Employer’s owner, Van Hyning, invited claimant to his office for an interview, where they discussed claimant’s application and the requirements of the job. Consistently with employer’s customary practice, claimant then participated in a “safe driving test” that involved performing an actual delivery in a “real-world situation [] with an experienced driver.” Claimant drove one of employer’s delivery trucks, with a full-time employee, Hanson, as a passenger, to a designated delivery location approximately 30 miles away. In the course of disconnecting hoses from the trailer, claimant fell and injured his hip. Because claimant’s injury rendered him unable to drive, Hanson drove to the next stop, where they picked up an empty container before returning to employer’s premises.

The record reflects that employer was most likely paid for the delivery that occurred during claimant’s test.2 [229]*229Hanson was compensated for his time accompanying claimant. According to Van Hyning, both things would have been true if claimant had not been present; the only difference that claimant’s presence made was that Hanson had the opportunity to observe and evaluate his driving. Van Hyning thus testified that employer received no benefit from claimant’s participation in the delivery that day. Claimant was not hired.

SAIF denied claimant’s claim for a left hip injury on the ground that claimant was not a subject worker at the time of his injury. An administrative law judge upheld SAIF’s denial; a divided panel of the board affirmed. The majority concluded that, because claimant was engaged in a pre-employment evaluation with only the possibility of future employment, he had not established that he was “engage [d] to furnish services for a remuneration” under ORS 656.005(30). The dissenting board member reasoned that claimant had provided actual services for which employer was compensated, thus establishing an implied-in-law contract that was sufficient to make claimant a worker entitled to benefits.

Whether a claimant is a “worker” under ORS 656.005(30) is a question of law that we review for legal error under ORS 183.482(8)(a). Rubalcaba v. Nagaki Farms, Inc., 333 Or 614, 619, 43 P3d 1106 (2002). The board’s predicate factual findings are reviewed for substantial evidence. ORS 656.298(7) (providing that review of board orders shall be as provided in ORS 183.482); ORS 183.482(8)(c) (providing for substantial evidence review).

SAIF relies principally on the board’s finding— predicated, in part, on its express credibility findings—that the parties had made no “agreement” for remuneration at the time that claimant performed his driving test. Even accepting that as true, we conclude that it is legally irrelevant, because the law implies the existence of an agreement in this circumstance.

Our conclusion flows from two principles. First, in the absence of specific statutory exemptions—which undis-putedly do not apply to this case—a person must be paid a wage for work. That is the point of the minimum wage [230]*230statute, ORS 653.025. Thus, if claimant was put to work for employer, even if only for a brief period of time, it does not matter that the parties did not agree as to remuneration. The law requires it.

Second, what claimant did that day was “work” as a matter of law, regardless of whether employer also had the subjective or even primary purpose of evaluating him in anticipation of permanent employment. That is so because it is undisputed—and employer concedes—that the nature of claimant’s activity was work. He performed an actual delivery, for which employer presumably was paid. According to Van Hyning, if claimant had been on the payroll at the time, he would have been paid for that activity, as Hanson was. Those facts are sufficient to establish that claimant was put to work.

Because claimant was put to work for employer, the law implies the existence of a contract. The board majority recognized that an implied-in-law contract can be sufficient under ORS 656.005(30) to establish an agreement to provide “services for a remuneration.” See Montez v. Roloff Farms, Inc., 175 Or App 532, 536, 28 P3d 1255 (2001) (“A contract for hire that satisfies the ‘engagement’ requirement of ORS 656.005(30) may be based on either an express or implied contract.”); Staley v. Taylor, 165 Or App 256, 262, 994 P2d 1220 (2000) (the term “implied contract” refers either to a contract implied in fact or to one implied in law; the latter obligation is created “‘by the law for reasons of justice, without any expression of assent’” (quoting Arthur Linton Corbin, 1 Corbin on Contracts § 19, 46 (1963))). The board majority concluded, however, that such an implied contract was not created here. Neither reason cited by the majority is persuasive.

First, the majority reasoned that the purpose of claimant’s activities was to test his driving, and that employers must have the ability to require such tests before hiring. We agree that an employer may require a job applicant, without paying that person for his time, to take a test as part of the application process. See, e.g., BBC Brown Boveri v. Lusk, 108 Or App 623, 816 P2d 1183 (1991) (the claimant, who failed a pre-employment welding test for a position as a boiler maker, was not performing services for remuneration and was not a “worker”); Dykes v. SAIF, 47 Or App 187, 613 [231]*231P2d 1106 (1980) (the claimant did not furnish services “for a remuneration” where the claimant broke his leg during a pre-employment agility test for a position as a deputy sheriff).

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Related

Randall v. SAIF
476 P.3d 98 (Court of Appeals of Oregon, 2020)
Gadalean v. Saif Corp. (In re Comp. of Gadalean)
439 P.3d 965 (Oregon Supreme Court, 2019)

Cite This Page — Counsel Stack

Bluebook (online)
398 P.3d 503, 286 Or. App. 227, 2017 WL 2569856, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gadalean-v-saif-corp-orctapp-2017.