Peters v. Double DD Trucking

• Decision Date: 29 October 1991
• Parties: In the Matter of the Compensation of Richard J. Peters, Claimant. Richard J. PETERS, Petitioner, v. DOUBLE DD TRUCKING and Liberty Northwest Insurance Corporation, Respondents. WCB 86-01810; CA A64056.
• Court: Oregon Court of Appeals

Page 67

813 P.2d 67

107 Or.App. 594

In the Matter of the Compensation of Richard J. Peters, Claimant.

Richard J. PETERS, Petitioner, v. DOUBLE DD TRUCKING and Liberty Northwest Insurance

Corporation, Respondents.

WCB 86-01810; CA A64056.

Court of Appeals of Oregon.

Argued and Submitted Nov. 21, 1990.

Decided June 19, 1991.

Reconsideration Denied Aug. 21, 1991.

Review Denied Oct. 29, 1991.

J. Michael Alexander, Salem, argued the cause for petitioner. With him on the brief was Burt, Swanson, Lathen, Alexander & McCann, Salem.

Stafford J. Hazelett, Portland, argued the cause and filed the brief for respondents.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

RICHARDSON, Presiding Judge.

In this workers' compensation case, claimant seeks review of the Board's denial of compensation. The sole issue is whether claimant is a "subject worker" under ORS 656.027. We affirm.

Claimant requested a hearing on employer's denial of his claim to recover for injuries sustained in a 1985 trucking accident. The primary issue was whether claimant was a "subject worker" of Double DD Trucking (employer) or whether he was an independent contractor. The referee found that employer had the right to control claimant and that, therefore, he was a subject worker and entitled to workers' compensation benefits. Employer appealed to the Board, which reversed the referee's opinion, concluding that claimant was an independent contractor. The Board found:

"Claimant was 56 years old at the time of hearing. In February, 1985, claimant and Mr. Ganoe agreed to be truck driving partners. At that time, Ganoe had an agreement with Double DD Trucking Lines Inc. (the insured in this case) to drive a truck and deliver loads for them. That agreement included that Ganoe would be paid by the load; that no taxes would be taken from the load settlement; that the amount of the load settlement would be a percent of the load; that Ganoe would pay for all of his expenses (i.e., gas, oil, food, lodging, etc.) in hauling the load; that Ganoe would call the main office to receive new assignments upon completing a load; that Ganoe could refuse assignments; that the requirement of successfully completing an assignment was to timely deliver the load to the required location in good condition; that failure to successfully complete assignments could result in Ganoe not being given any more assignments; and that hours and route were up to Ganoe.

"Ganoe and claimant had an agreement that when Double DD would make out a settlement check to Ganoe, he would pay claimant a straight 50 percent of whatever that load brought in. The checks were made out to Mr. Ganoe, who in turn would cash the check, and pay claimant after all of their expenses (i.e., gas, oil, food, lodging, etc.) were deducted. Claimant and Ganoe split all the expenses equally.

"Before claimant could operate the truck Ganoe was using, he had to pass a written examination, and a road test. These tests are part of state licensing requirements for all persons operating trucks. Both of these examinations were administered by Mr. Diede, the owner of the insured.

"Mr. Kuhlman owned the truck driven by claimant and Ganoe. Kuhlman leased the vehicle to Double DD. He provided no direction or control over claimant's employment activities. Double DD had an arrangement with Ganoe regarding the lease and use of the truck.

"Ganoe and claimant exercised all the rights of Ganoe's agreement with the insured.

"Claimant was injured in a truck accident on March 22, 1985. Claimant received treatment for a laceration of the instep and...