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R & R Tree & Landscape, Inc. v. Dep't of Consumer & Bus. Servs.

Court of Appeals of Oregon

August 6, 2014

R & R TREE AND LANDSCAPE, INC., dba R & R Tree Service, Petitioner,
v.
DEPARTMENT OF CONSUMER AND BUSINESS SERVICES and SAIF CORPORATION, Respondents

Argued and Submitted May 2, 2014

Department of Consumer and Business Services, INS1011006.

Karen S. Varney argued the cause for petitioner. On the opening brief were Linda C. Attridge and Radler, Bohy, Replogle & Conratt, LLP. On the reply brief was William H. Replogle.

Inge D. Wells, Assistant Attorney-in-Charge, argued the cause for respondents. With her on the brief was Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.

OPINION

[264 Or.App. 569] TOOKEY, J.

Petitioner R & R Tree and Landscape, Inc., seeks review of a final order of the Director of the Department of Consumer and Business Services (DCBS). See ORS 183.480; ORS 183.482 (judicial review of final agency orders). The order upheld the results of premium audit billings issued by petitioner's workers' compensation insurer, SAIF Corporation (SAIF), for three audit periods: July 1, 2008 to July 1, 2009; July 1, 2009 to July 1, 2010; and July 1, 2010 to July 1, 2011. See ORS 737.318; OAR 836-043-0110 (workers' compensation premium

Page 1090

audit program); ORS 737.505 (appeals to the director of DCBS). We affirm.

We begin by providing some background information for the discussion that follows. An employer pays workers' compensation insurance premiums based on the risk associated with its business. Lemma Wine Co. v. Natl. Council on Comp. Ins., 194 Or.App. 371, 373-74, 95 P.3d 238 (2004). Employers are assigned risk classifications based on the general nature of the business. Id. When an individual employee performs multiple jobs with different levels of risk, the employer can qualify for multiple classifications for that employee, provided that the employer maintains " verifiable payroll records" concerning the work that the individual employee performs. OAR 836-042-0060(1). If an employer does not maintain verifiable payroll records for an individual employee as required, " the entire payroll of the employee shall be assigned to the highest rated classification[.]" OAR 836-042-0060(3).

Under OAR 836-042-0060(4), payroll records are " verifiable" if they have the following characteristics:

" (a) The records must establish a time basis, and the time basis must be hourly or a part thereof, daily or part thereof, weekly or part thereof, monthly or part thereof or yearly or part thereof;
" (b) For each salaried employee, the records must also include time records in which the salary is converted to an hourly, daily, weekly, monthly or yearly rate and then multiplied by the time spent by the employee in each classification exposure;
[264 Or.App. 570] " (c) The records must include a description of duties performed by the employee, to enable the insurer to determine correct classification assignment. Records requiring additional explanation or ...

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