Gadalean v. Saif Corp. (In re Comp. of Gadalean)

Decision Date18 April 2019
Docket NumberSC S065203
Citation439 P.3d 965,364 Or. 707
Parties In the MATTER OF the COMPENSATION OF Cozmin I. GADALEAN, Claimant. Cozmin I. Gadalean, Respondent on Review, v. SAIF Corporation and Imperial Trucking, Inc., Petitioners on Review.
CourtOregon Supreme Court

Julie Masters, SAIF Corporation, Salem, argued the cause and filed the briefs on behalf of petitioners on review.

Julene M. Quinn, Portland, argued the cause and filed the brief on behalf of respondent on review.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, and Nelson, Justices, and Landau, Senior Justice pro tempore.**

NELSON, J.

This case requires us to decide whether the definition of "worker" in the Workers’ Compensation Law encompasses a claimant injured during a preemployment drive test that consisted of an actual delivery for an employer. To qualify for workers’ compensation, a claimant must be a "worker." ORS 656.027. ORS 656.005(30) defines "worker," in part, as a person "who engages to furnish services for a remuneration." Claimant, a commercial truck driver, was sent on a supervised delivery by and for employer as a preemployment drive test. He was injured when he fell from employer’s truck. The Workers’ Compensation Board (the board) denied claimant coverage, concluding that he did not qualify as a worker at the time of the injury. The Court of Appeals reversed, holding that Oregon’s minimum wage laws would have entitled claimant to be paid for the delivery and that, therefore, he was a worker within the meaning of the workers’ compensation statute. Gadalean v. SAIF , 286 Or. App. 227, 398 P.3d 503 (2017). For the reasons that follow, we conclude that the Court of Appeals erred, and we affirm the board’s denial of coverage.

FACTS

We take the historical facts from the board’s findings set out in its order. Those include the earlier findings of an administrative law judge (ALJ), which the board adopted along with its own factual summary.

In May 2014, claimant responded to employer’s job advertisement for a truck driver position. He applied for the position by email and submitted his resume online. He also completed a drug screen and provided employer with copies of his current Commercial Driver’s License, medical card, social security card, and DMV records, along with the results of the drug screen.

Soon thereafter, employer’s owner, Van Hyning, had claimant come to his office for an interview, where they discussed his application and the requirements of the job. Claimant was scheduled to take a mandatory U.S. Department of Transportation (DOT) pre-employment driving test.

The board found that no offer of employment was made during that meeting.

On June 4, 2014, claimant met with Hanson, one of employer’s truck drivers, for the driving test. Claimant drove one of employer’s trucks, with Hanson as a passenger, to a designated delivery location. While disconnecting hoses from the trailer at that location, claimant fell four or five feet from the truck to the ground. He landed on his left hip and experienced significant pain. Claimant’s injury rendered him unable to drive the truck, and Hanson drove to the next stop, where they picked up an empty container before returning to employer’s premises.

Van Hyning did not ask claimant to come back to finish the driving test. Claimant did not fill out any employment tax forms. He did not receive any written offer of employment.

After the accident, claimant sought medical treatment for his injury and was diagnosed with left hip strain. On June 10, 2014, claimant filed an injury claim with SAIF, alleging that he had injured himself on June 4, while working for employer as a truck driver. Claimant also submitted Workers’ Compensation Form 801 to employer. On that form, under "date worker hired," employer wrote "preemployment driving test," because claimant had not been hired yet and the driving test and evaluative process had been unpaid work.

As part of SAIF’s investigation of his claim, claimant told a SAIF investigator that he had understood that Van Hyning had "want[ed] to evaluate me," which was why he had sent claimant with another driver. Claimant did not know whether June 4 had been considered a training day or a preemployment evaluation day. As he understood it, the agreement was that Van Hyning would assess how he performed on June 4, and, if he passed, he would "continue working." Claimant also told the investigator that he had not received any written offer of employment nor filled out any employment tax form.

SAIF denied compensability of the claim, asserting that claimant had not been a subject worker at the time of the injury because he had not met the definition of "worker" in ORS 656.005(30). On claimant’s request, an ALJ later conducted a hearing, at which he considered the investigator’s report and the testimony of three witnesses: claimant, Van Hyning, and Hanson.

Claimant testified that, when he first met with Van Hyning, he was given a job description and a schedule, and told what his pay would be. Claimant further asserted that Van Hyning had told him that he had the job before the safe driving test, did not say that claimant was being evaluated that day, and had agreed to pay claimant 25 percent of the gross profit from the delivery claimant was to complete.

The investigator’s report summarized claimant’s understanding somewhat differently:

"Van [H]yning ‘wants to evaluate me[,] which was the reason he sent [claimant] with another driver. [Claimant] did not receive a written job offer. Van [H]yning did not tell [claimant] he got the job just [he] wanted [claimant] to drive with another driver. The point was not to offer a job but to evaluate how good [claimant] can do the job. [Claimant] could not define June 4, as a training day or evaluation day. [Claimant] said that Van [H]yning was going to send [him] to work for one day to see how he does and if [claimant] did a good job he would continue working. On June 4, 2014, [claimant] said he drove the truck to a warehouse in Clackamas. [Claimant] did not fill [out] any employment tax forms. He did not receive any written job offer."

(Alterations in original.)

Van Hyning testified that he could not remember what he specifically had told claimant in their meeting prior to the drive, but that he had not hired claimant. He explained that it was his usual practice to tell applicants that they would be required to take an unpaid safe driving test as part of the evaluation process. According to Van Hyning, a safe driving test was required by DOT, and every driver hired by employer had to take and pass the test.1 The employer’s test involved putting the individual in a regular delivery scenario and having the prospective employee drive in real-world situations with an experienced driver. Individuals participating in the safe driving test were not placed on any insurance. For individuals who passed the test, Van Hyning would meet with them again to discuss the job in more detail and see if they were still interested. Van Hyning testified that, at that point in time, he would have told claimant that he had been hired and required him to fill out tax forms.2

Van Hyning also explained that, if claimant had been an employee when he was injured on the delivery, he would have been paid. Van Hyning did not think that the employer had received any benefit from claimant’s participation in the delivery because Hanson, who had been paid for his work that day, would have been driving the route even if claimant had not been there.

During Hanson’s testimony, he estimated that claimant had driven about 30 miles before he was injured. Hanson also testified that he took a safe driving test before he was hired, and he did not think a driver could be evaluated without doing the "road test." He also verified that every potential employee of employer had to take the road test prior to employment.

The ALJ affirmed SAIF’s denial of the claim after determining that, at the time of his injury, claimant had not been hired and had not received any kind of remuneration or promise of future remuneration, and was therefore not a subject worker. In making that determination, the ALJ discredited claimant’s testimony that he had been told that he would be paid twenty-five percent of the gross profit for the delivery. In that regard, the ALJ specifically stated that claimant’s testimony "at [the] hearing was at odds with his prior *** statement" and "was vague or contradictory."

By contrast, the ALJ found Van Hyning and Hanson credible. The ALJ found that "Van Hyning [had] asked claimant to engage in an unpaid driving test" and that claimant had understood that "there was no employment agreement at that time or promise of future remuneration." The ALJ also determined that "Van Hyning emphasized to claimant that the driving test was required by DOT, was unpaid, and he would not even consider hiring claimant until he successfully passed the driving test."

Claimant sought review of the ALJ’s order by the board. The board affirmed on review and on reconsideration, adopting the ALJ’s findings of fact. One member dissented, explaining that she considered employer’s receipt of claimant’s services without remuneration unjust and would, therefore, infer the presence of an implied contract establishing claimant as a subject worker. She noted that, although not controlling, the minimum wage statutes supported finding an implied-in-law contract.

Claimant filed a petition for judicial review in the Court of Appeals. On review, claimant did not take issue with any of the board’s findings of fact. Instead, he contended that the board should have looked beyond the workers’ compensation statutes to the minimum wage law to determine applicability of benefits.

The Court of Appeals reversed the board, concluding that claimant indeed had qualified as a worker at the time of his injury because he had been "put to work" and thus was entitled to receive the minimum wage for the...

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