Randall v. Ocean View Construction Co.
| Decision Date | 10 November 2004 |
| Citation | 100 P.3d 1088,196 Or. App. 153 |
| Parties | In the Matter of the Subject Worker Status of John Randall, Claimant. John RANDALL, Petitioner, v. OCEAN VIEW CONSTRUCTION COMPANY and Department of Consumer and Business Services, Respondents. |
| Court | Oregon Court of Appeals |
Christine C. Frost, Portland, argued the cause for petitioner. With her on the briefs was Robert K. Udziela. Kenneth L. Kleinsmith argued the cause for respondent Ocean View Construction Company. With him on the brief was Brad G. Garber.
Judy Lucas, Assistant Attorney General, argued the cause for respondent Department of Consumer and Business Services. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.
Before BREWER, Chief Judge, EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, SCHUMAN, and ORTEGA, Judges, and DEITS, Judge pro tempore.
Resubmitted En Banc April 1, 2004.
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" that 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 P.2d 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 P.2d 1143 (1993).
We begin with ORS 656.027, which provides, in part:
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 one 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.
The statute begins by requiring that "[a]n applicant [for a construction contractor's license] must qualify as an independent contractor." ORS 701.035(1). No activities there.
The statute then states that the CCB is required to "establish two classes of independent contractor licenses," one for an "exempt class" of licensees and one for a "nonexempt class." ORS 701.035(2). Again, nothing that plausibly relates to the "activities subject thereto" mentioned in ORS 656.027(7)(b).
The statute next states the consequences for a contractor obtaining the wrong class of license. ORS 701.035(3). Once again, no "activities subject thereto."
Finally, the statute states that "[t]he decision of the board that a person is an independent contractor applies only when the person is performing the work of the nature described in ORS 701.055 and 701.060." ORS 701.035(4). Here, at least, we find a reference to some sort of activities, in this case "work of the nature" described in two other statutes. Interestingly, however, the work that is mentioned is relevant only to a "decision of the board that a person is an independent contractor." If ORS 701.035(4) is the intended destination signaled by the reference in ORS 656.027(7)(b) to "activities subject thereto," the drafters again did us no favors, for the reference in the former statute applies only to determinations of the CCB, while the reference in the latter statute concerns a conclusive presumption independent of any decisions of the CCB.
Be that as it may, ORS 701.035(4) is the only portion of the cross-referenced statute that describes an activity: "work of the nature" described in two other statutes — ORS 701.055 and ORS 701.060. So we assume, as does everyone else in this case, that that is the relevant activity to which a sole proprietor's activity must be subject under ORS 656.027(7)(b).
Again, ORS 701.035(4) mentions "work of the nature" described in two statutes. The first statute is a prohibition. It states that "[a] person may not undertake, offer to undertake or submit a bid to do work as a contractor unless that person has a current, valid license issued by the Construction Contractors Board." ORS 701.055(1). What, then, is the nature of the work described in that statute? It seems to us that it is work of a contractor that requires a license from the CCB.
The second statute merely refers to obtaining additional licenses for activities that must be licensed under ORS 701.055:
ORS 701.060....
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