SAIF Corp. v. Ekdahl

12 P.3d 57, 170 Or. App. 193, 2000 Ore. App. LEXIS 1673
Court of Appeals of Oregon·Decided October 4, 2000·No. 98-01337; CA A104246·Published·Cited by 1 cases

Opinion

ARMSTRONG, J.

Employer seeks review of an order of the Workers’ Compensation Board that included claimant’s patronage dividends in the wages that were used to calculate her temporary disability compensation. We affirm.

Claimant was a member of Burley Design Cooperative (Burley), a manufacturer of bicycles and bicycle accessories. She was injured in a 1996 car accident as she drove home from a work-related seminar. She suffered a cervical and right humerus strain in the accident. Employer accepted her claim and paid her temporary disability benefits. Claimant challenged the rate at which those benefits were paid, arguing that the patronage dividends that she had received during the 52 weeks preceding the accident should be included as part of her wages in the calculation of her time loss benefits.

Burley is a worker-owned cooperative, organized under ORS chapter 62. In addition to its members, who are the owners of the business, Burley also employs a small number of nonmembers. While nonmembers are paid only an hourly wage, members of the cooperative receive both an hourly wage and patronage dividends. Patronage dividends are calculated yearly, based on the number of hours a member works and the portion of the profits that is attributable to the efforts of Burley’s members.1 Patronage dividends are declared at some point in the year following the year in which the profits were actually earned; the declaration is made retroactive to January 1 of the year in which it is made. Each member receives a set portion of the dividend (which can vary between 20 percent and 50 percent) some time in the first eight and a half months of the year in which the dividends are declared.2 The remainder is put into a capital account in the member’s name, where it remains for two years as equity.3 After the two years, the money becomes a [196] loan to the cooperative upon which the cooperative pays interest to the member. Members are immediately liable for income taxes on the entire amount of the dividend.

The administrative law judge (ALJ) held that the entire patronage dividend was part of claimant’s wages and therefore had to be included in the calculation of her time loss benefits. Employer sought review, and the Board affirmed.

ORS 656.210 governs the calculation of temporary total disability benefits. Subsection (2)(b)(A) of that statute provides that “[t]he benefits of a worker who incurs an injury shall be based on the wage of the worker at the time of injury.” Under ORS 656.005(29),4 “wages” is defined as “the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident, including reasonable value of board, rent, housing, lodging or similar advantage received from the employer.”

The determination of whether claimant’s patronage dividends were part of her wages depends on an understanding of the nature of a cooperative. In a case addressing the taxation of cooperatives, the Supreme Court explained that a cooperative is

“an organization established by individuals to provide themselves with goods and services, or to produce and dispose of the products of their labor. The means of production and distribution are thus owned in common and the earnings revert to the members, not on the basis of their investment in the enterprise but in proportion to their patronage or personal participation in it.”

Linnton Plywood v. Tax Com., 241 Or 1, 4, 403 P2d 708 (1965) (citations and internal quotation marks omitted). The Linnton court further noted that “income is taxed to the one who produces the income,” and that “in the absence of legislation to the contrary, the worker-members of a cooperative are considered [to be] the producers of the income.” Id. at 7. Finally, it noted that “the earnings of this plaintiff [the cooperative] created by its workers are the earnings of its worker-members and cannot be considered as part of the income of [197] the corporation.” Id. at 9. Similarly, William Meade Fletcher has explained that “[t]he tax exclusion or deduction of cooperatives’ earnings rests on the theory that such earnings are not profits but rather savings produced for a patron through a pooled effort. The policy behind the tax exemption is not to benefit the cooperative as a business organization but to benefit its member-producers.” William Meade Fletcher, 14A Fletcher Cyclopedia of the Law of Private Corporations § 7026.1, at 679 (rev ed 2000) (citations omitted).

Based on the definition of “wages” in ORS 656.005(29) and the nature of the cooperative of which claimant was a member, we are persuaded that the patronage dividends that claimant received were wages. As the Supreme Court explained in Linnton, the income produced by a cooperative through the efforts of its members is properly considered the income of the members, rather than the profits of the cooperative. Coupled with the fact that the patronage dividends were based on the hours that claimant worked, that feature of a cooperative disposes of employer’s argument that claimant’s entitlement to patronage dividends was comparable to a stockholder’s right to share in a corporation’s profits. Furthermore, the fact that the dividends were monetary and based in part on the number of hours that claimant worked means that the dividends were properly considered a “money rate.” It also is significant that claimant was entitled to the patronage dividends under the membership agreement that she signed when she became a member of Burley. Thus, the dividends were part of “the money rate at which the service rendered is recompensed under the contract of hiring.” ORS 656.005(29). Because patronage dividends fall under the statute’s basic definition of “wages,” there is no need to analyze the extent to which they qualify as a “similar advantage” under ORS 656.005(29).5

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SAIF Corp. v. Ekdahl, 12 P.3d 57, 170 Or. App. 193, 2000 Ore. App. LEXIS 1673 (Or. Ct. App. 2000).

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