Randall v. Ocean View Construction Co.

100 P.3d 1088, 196 Or. App. 153, 2004 Ore. App. LEXIS 1469
CourtCourt of Appeals of Oregon
DecidedNovember 10, 2004
Docket98-09289; A116878
StatusPublished
Cited by4 cases

This text of 100 P.3d 1088 (Randall v. Ocean View Construction Co.) 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
Randall v. Ocean View Construction Co., 100 P.3d 1088, 196 Or. App. 153, 2004 Ore. App. LEXIS 1469 (Or. Ct. App. 2004).

Opinions

[155]*155LANDAU, J.

Claimant seeks review of an order of the Director of the Department of Consumer and Business Services (department) that affirms an order of the Workers’ Compensation Division (WCD) holding that claimant was not a subject worker. We reverse and remand for reconsideration.

The relevant facts are not in dispute. Claimant had a Construction Contractors Board (CCB) license. Ocean View Construction Company (Ocean View) also had a CCB license. Claimant offered to work for Ocean View as a contractor at a contractor’s rate of pay. Ocean View refused the offer because it already had its own CCB license. It agreed, however, to hire claimant at an hourly employee rate of pay. Claimant agreed.

Ocean View paid claimant as an employee and withheld income tax and social security tax from his wages. Ocean View reserved the right to terminate claimant and retained the right to control the means and manner of his work. Claimant brought his own tools to the job site, although he also used some of Ocean View’s tools. He was capable of working alone and did so. Claimant’s work for Ocean View did not require the use of his CCB license or bond.

Claimant was injured when he was working alone at or near the top of the house and fell to the ground. He filed a claim for workers’ compensation benefits for an injury to his ankle. The WCD determined that claimant was not entitled to benefits because he was not a “subject worker” within the meaning of the workers’ compensation statutes. The WCD reasoned that he was instead an independent contractor. Claimant requested a hearing, and an administrative law judge (ALJ) affirmed the WCD order on the ground that, under ORS 656.027(7)(b), claimant conclusively was presumed to be an independent contractor because he had a CCB license and was involved at the time of his injuries in activities subject to the licensing statute. The ALJ’s order is deemed a final order of the director by operation of law. ORS 656.740(5)(a).

On review, claimant argues that the director erred in concluding that he is subject to a conclusive “presumption” [156]*156that he is an independent contractor and not a subject worker within the meaning of the workers’ compensation statutes. He argues that, although he possessed a CCB license, he was not engaged in activities that were subject to the licensing statutes at the time of his injuries. Ocean View and the department argue that the director correctly concluded that claimant is subject to the conclusive presumption because he possessed a CCB license and was doing the work of a contractor.

When the relevant facts are not in dispute, whether a person is a “worker” entitled to benefits under the workers’ compensation statutes generally is a question of law. Oregon Drywall Systems v. Natl. Council on Comp. Ins., 153 Or App 662, 666, 958 P2d 195 (1998). In this case, the relevant facts are not in dispute, and the parties debate only the meaning and applicability of various statutes. When we interpret statutes, our task is to determine, if possible, the meaning that the legislature intended, looking first to the wording of the statute in context and, if necessary, legislative history and other aids to construction. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993).

We begin with ORS 656.027, which provides, in part:

“All workers are subject to this chapter except those nonsubject workers described in the following subsections.
* * * *
“(7)(a) Sole proprietors, except those described in paragraph (b) of this subsection. When labor or services are performed under contract, the sole proprietor must qualify as an independent contractor.
“(b) Sole proprietors * * * licensed under ORS 701.035. When labor or services are performed under contract for remuneration, notwithstanding ORS 656.005(30), the sole proprietor must qualify as an independent contractor. Any sole proprietor * * * licensed under ORS 701.035 and involved in activities subject thereto is conclusively presumed to be an independent contractor.”

Thus, the statute begins by affirmatively declaring that “[a]ll workers are subject to this chapter,” and follows with a list of exceptions to the affirmative declaration. This case involves [157]*157one of the categories of exceptions, listed in subsection (7)(b), which refers to “sole proprietors licensed under ORS 701.035.”

The phrasing, however, is perplexing. If it was intended that all sole proprietors licensed under ORS 701.035 are excepted from the declaration that all workers are subject workers, the statute could well have stopped with that simple declaration. It did not, however. Instead, the statute goes on to say that, if a sole proprietor provides labor or services under contract for remuneration, the sole proprietor must be an independent contractor. And, the statute continues, any sole proprietor licensed under ORS 701.035 and “involved in activities subject thereto” is conclusively presumed to be an independent contractor. Apparently, that means that, if the sole proprietor is licensed under ORS 701.035 but is not “involved in activities subject thereto,” the sole proprietor is not an independent contractor and is, instead, a subject worker. On that much, all parties seem to agree.

The question, therefore, is whether the stipulated facts in this case satisfy the statutory requirements that claimant was a sole proprietor (1) “licensed under ORS 701.035” and (2) “involved in activities subject thereto.” The parties appear to be in agreement that claimant was licensed under ORS 701.035.1 So the determinative question is whether he was involved in activities “subject thereto.” Subject whereto? The only plausible reference is subject to ORS 701.035. That, however, creates some further interpretive challenges, because ORS 701.035 does not describe any activities that are subject to it.

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Related

Mendoza v. Ron Dickson Corp.
327 Or. App. 692 (Court of Appeals of Oregon, 2023)
Schmidt v. Intel Corp.
112 P.3d 428 (Court of Appeals of Oregon, 2005)
Randall v. Ocean View Construction Co.
100 P.3d 1088 (Court of Appeals of Oregon, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
100 P.3d 1088, 196 Or. App. 153, 2004 Ore. App. LEXIS 1469, Counsel Stack Legal Research, https://law.counselstack.com/opinion/randall-v-ocean-view-construction-co-orctapp-2004.