Meyers v. SAIF Corp. (In re Meyers)

420 P.3d 28, 291 Or. App. 331
CourtCourt of Appeals of Oregon
DecidedApril 18, 2018
DocketA160626
StatusPublished
Cited by1 cases

This text of 420 P.3d 28 (Meyers v. SAIF Corp. (In re Meyers)) 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
Meyers v. SAIF Corp. (In re Meyers), 420 P.3d 28, 291 Or. App. 331 (Or. Ct. App. 2018).

Opinion

EGAN, C.J.

*332Claimant seeks review of an order of the Workers' Compensation Board affirming an order of an administrative law judge (ALJ) upholding SAIF's denial of claimant's claim for an injury she suffered while on her way to an "orientation" before beginning a paid training for work as a telemarketer at SAIF's insured, Jadent Incorporated. We conclude that the board's order is not supported by substantial evidence or substantial reason and that the board erred as a matter of law in upholding the denial. We therefore reverse the board and remand for an order determining that the claim is compensable.

We summarize the facts from the board's findings, which are largely undisputed. Claimant had previously worked as a telemarketer for Crystal Marketing Group (CMG). CMG was going to close its operations and, in November 2011, CMG's owner invited the management of one of its clients, Jadent, to come talk to CMG employees about the possibility of working in telemarketing for Jadent. McClintock, Jadent's Portland branch manager, spoke to a group of CMG employees and invited them to come see him in January 2012. A number of CMG

*29employees, but not claimant, applied for work with Jadent and were hired in January 2012.

One year later, on January 2, 2013, claimant contacted McClintock, seeking employment. She met with him and completed an application for a telemarketing position, indicating that she had previously worked for Jadent. McClintock clarified with claimant that she had not worked for Jadent but had only worked for CMG, which had performed contract work for Jadent. Claimant also told McClintock that she believed McClintock had promised her a job with Jadent one year before when CMG closed its operations in December 2011; but McClintock explained that he had come to CMG at that time to encourage CMG employees to apply for positions with Jadent but had not promised to hire them.

When claimant later called to ask about the status of her application, McClintock invited her to return to the office on January 21, 2013, to attend an "orientation" and a *333paid training. The orientation required the presentation of photo identification, the completion of personnel paperwork, and agreement with Jadent's "rules of the office," including its sexual harassment policy, productivity expectations, and dress code.

On the day of the orientation and training, claimant arrived at Jadent's office. As she opened a door to a stairwell leading to Jadent's offices, a Jadent employee came through the door, which flew open and struck claimant, knocking her to the floor. Medical imaging revealed a right hip fracture, for which claimant received medical treatment including surgery.

Claimant filed a claim for the injury with Jadent. SAIF denied the claim, asserting that claimant was not a subject worker at the time of her injury. At the hearing, claimant testified that she believed, when she arrived at Jadent's office on January 21, 2013, that on January 2, 2013, McClintock had promised her a paid training and employment with Jadent, and that the orientation was a mere formality. McClintock offered a different view, testifying that the orientation was a prerequisite to participating in Jadent's paid training and involved the completion of forms necessary for employment, as well as the signing of documents agreeing to comply with workplace policies, including productivity expectations and employer's dress code. McClintock testified that the orientation was required for all prospective employees before they were eligible to begin the paid training, and that, sometimes, prospective employees did not complete the orientation and were not offered the paid training. At the time of her injury, SAIF asserted, claimant had not begun the orientation and had not been hired by Jadent for the paid training.

The board upheld SAIF's denial. In affirming the ALJ's order, the board noted claimant's understanding that she would participate in the first day of paid training at nine dollars per hour; but the board explicitly rejected claimant's contention that she had been offered employment with remuneration, finding McClintock's testimony more persuasive that claimant could not participate in the paid training until she had completed the orientation. The board implicitly *334agreed with the ALJ's finding that claimant's testimony was "unreliable," based on claimant's mistaken understanding that she had previously worked for Jadent and that McClintock had previously offered her a job at Jadent. The board expressly found that claimant's employment at Jadent was contingent on the completion of the orientation paperwork and that she had never been hired by Jadent, because she did not complete the orientation. One board member dissented, reasoning that, at the time of claimant's injury, claimant, and Jadent had an implied agreement that claimant would engage in the paid training.1

We review the board's findings for substantial evidence, its order for substantial reason, and its legal conclusions for errors of law. ORS 656.298(7) ; ORS 183.482. Only "subject workers" are entitled to coverage *30under the Workers' Compensation Law. ORS 656.027. One who is not a "worker" cannot be a subject worker. On judicial review, in support of her contention that the claim is compensable, claimant contends that she is entitled to workers' compensation coverage because she falls within the statutory definition of a "worker." ORS 656.005(30) provides:

" 'Worker' means any person * * * who engages to furnish services for a remuneration, subject to the direction and control of an employer[.]"

Claimant has the burden to prove that she was a "worker" within the meaning of ORS 656.005(30). Hopkins v. Kobos Co. , 186 Or.App. 273, 276-77, 62 P.3d 870 (2003). As we said in Hopkins , the definition of "worker"

"contains two elements: an agreement between the claimant and the employer that the employer will provide remuneration for the claimant's services, and the employer's right to direct and control the services the claimant provides."

Id. at 276-77

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Related

Randall v. SAIF
476 P.3d 98 (Court of Appeals of Oregon, 2020)

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Bluebook (online)
420 P.3d 28, 291 Or. App. 331, Counsel Stack Legal Research, https://law.counselstack.com/opinion/meyers-v-saif-corp-in-re-meyers-orctapp-2018.