Saif Corp. v. Moe

919 P.2d 533, 142 Or. App. 62, 1996 Ore. App. LEXIS 837
Court of Appeals of Oregon·Decided July 3, 1996·No. 92-15393; CA A85828·Published·Cited by 1 cases

Opinion

DE MUNIZ, J.

SAIF seeks review of an order of the Workers’ Compensation Board (board) holding that decedent was a subject Oregon worker at the time he sustained a fatal injury in Montana and that his widow was therefore entitled to survivor benefits. ORS 656.126(1). We affirm.

Decedent was killed in a logging accident while working for Jet Logging, Inc. (employer) in Montana on September 2, 1992. Employer is a small, family-owned Oregon logging company that hired decedent in 1989. Employer had a contract to perform work in Oregon until March 1992, when the Oregon company with which employer had contracted could no longer guarantee employer sufficient work. At that time employer accepted a logging contract in Montana. On March 16, employer told SAIF that it was taking its employees temporarily to Montana, and requested an “Extraterritorial Certificate of Insurance,” which SAIF issued March 18, 1992. Employer submitted that certificate to the Montana Employment Relations Division, which approved coverage through October 3, 1992. While in Montana, employer submitted payroll reports to SAIF and continued to pay premiums to SAIF through September 30,1992. Employer paid no payroll taxes in either Oregon or Montana.

Employer moved a large portion of its logging equipment to Montana but left other equipment in Oregon. Employer had opened a checking account in Montana in 1991, when its owners had purchased Montana acreage known as the Dry Creek Property, which was not connected to the Montana logging job. Employer used the Montana account to pay its employees and meet expenses for that job, but it continued to maintain an Oregon bank account after March 1992. It also kept an Oregon accountant and lawyer and maintained a business address, telephone number, auto insurance and supplier accounts in Oregon.

Before the move, decedent had separated from his wife, moved in with his mother and closed his Oregon bank account. In March, he went to Montana with employer and lived in a trailer parked near the rental housing occupied by [65] employer’s owners, other employees and their family members. Decedent registered his vehicle in Montana but retained his Oregon driver’s license and automobile insurance. In April, he began receiving paychecks from employer for the Montana work.

In August 1992, employer negotiated with a Wyoming company to do logging work in Wyoming. On August 24, those negotiations fell through and employer signed a contract with another Montana company to perform work in Montana from August 24 to October 30,1992. On September 1, the night before his death, decedent wrote to his girlfriend, who resided in Brownsville, Oregon. His letter stated:

“[I]f I don’t get a raise here pretty soon, I might just move there with you, and find a better job. * * * They have been promising me and Greg raises for 6 months and we haven’t seen any more money. But even if they don’t [,] I will probably stay anyways. Unless you do decide to move up here and after a few months or years we don’t like it we can move.”

Decedent was killed the next day. In November 1992, a son of employer’s president was also killed in a logging accident. Because of the son’s death, the president testified, employer decided to stay in Montana.

Decedent’s widow filed a claim for survivor’s benefits in Oregon. SAIF denied the claim, and a referee affirmed. The board reversed, reasoning that both employer and decedent had intended to remain in Montana only temporarily at the time of decedent’s death. SAIF seeks review from that order. We review for errors of law and substantial evidence.1 ORS 183.482(8)(a), (c); Berkey v. Dept. of Ins. and Finance, 129 Or App 494, 498, 879 P2d 240 (1994); Power Master, Inc. v. National Council on Comp. Ins., 109 Or App 296, 301, 820 P2d 459 (1991) (Power Master II).

[66] Whether workers injured out of state are entitled to benefits under Oregon’s Workers’ Compensation system is governed by ORS 656.126, which provides, in part:

“(1) If a worker employed in this state and subject to this chapter temporarily leaves the state incidental to that employment and receives an accidental injury arising out of and in the course of employment, the worker, or beneficiaries of the worker if the injury results in death, is entitled to the benefits of this chapter as though the worker were injured within this state.”

Under that section, “subject workers” (i.e., workers subject to ORS chapter 656) who work outside Oregon generally continue to be covered by this state’s workers’ compensation system if Oregon is the place of their permanent employment and if their presence out of state is “incidental”2 to that employment. Berkey, 129 Or App at 498; Northwest Greentree, Inc. v. Cervantes-Ochoa, 113 Or App 186, 188, 830 P2d 627 (1992); Power Master II, 109 Or App at 299. “Subject workers” include all workers who work in Oregon, with certain exceptions not relevant here. ORS 656.005(28); ORS 656.027; Northwest Greentree, 113 Or App at 188; Power Master II, 109 Or App at 299.

SAIF argues that decedent was not a “subject worker” because, at the time of decedent’s death, employer had moved to Montana and there was no more Oregon employment. SAIF relies on Hobson v. Ore Dressing, Inc., 87 Or App 397, 742 P2d 675, rev den 304 Or 437 (1987). There we held that the claimant, who was president and 50 percent shareholder of the employer corporation, was not a “subject worker” because when the claimant moved to California the [67] employer moved with him. 87 Or App at 400. After the move, the corporation’s headquarters were in the claimant’s California home, the company paid payroll taxes to California, the former Portland site was effectively inactive, and the corporation’s contacts in Oregon were limited to the claimant’s trips to negotiate future projects and consult with accountants, lawyers and financial institutions. Id. The similarity of facts here, SAIF contends, compels a similar conclusion.

However, as we noted in Hobson, the key inquiry under ORS 656.126(1) is “the extent to which the claimant’s work outside the state is temporary.” 87 Or App at 400.3 To determine whether a worker has temporarily left Oregon incidental to Oregon employment, we apply the “permanent employment relation test.” Berkey, 129 Or App at 498 (1994); Northwest Greentree, 113 Or App at 189; Power Master II, 109 Or App at 299.

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Saif Corp. v. Moe, 919 P.2d 533, 142 Or. App. 62, 1996 Ore. App. LEXIS 837 (Or. Ct. App. 1996).

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SAIF Corp. v. Moe
919 P.2d 533 (Court of Appeals of Oregon, 1996)