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In re Compensation of Pilling

Court of Appeals of Oregon

January 4, 2018

In the Matter of the Compensation of Mark Pilling, Claimant.
v.
TRAVELERS INSURANCE COMPANY and Sandra E. H. Pilling, dba Act Mess, Respondents. Mark PILLING, Petitioner,

          Submitted June 16, 2017

         Workers' Compensation Board 1400270

          Julene M. Quinn fled the briefs for petitioner.

          Jonathan A. Rose and MacColl Busch Sato, P. C., fled the brief for respondents.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: Claimant seeks review of an order of the Workers' Compensation Board (the board) holding that he is not a subject worker entitled to workers' compensation coverage for a work-related injury, because he was a partner in the business at the time of injury and had not applied for or made an election of coverage. Claimant contends that the board erred in determining that he was a partner in a partnership. He contends, in the alternative, that an application for workers' compensation insurance fled for the business by his spouse and partner constituted an election of coverage. Held: The board's finding that claimant was in a partnership is supported by substantial evidence. The application for insurance fled by claimant's spouse and partner listed claimant as an employee and did not provide the required notification to the insurer that the application was seeking coverage for a partner.

         Affirmed.

         [289 Or.App. 716] TOOKEY, J.

         This workers' compensation case is about whether claimant Mark Pilling was a "subject worker" entitled to benefits under the Workers' Compensation Act. Claimant seeks review of an order of the Workers' Compensation Board reversing an order of an administrative law judge (ALJ) and holding that he is not a subject worker entitled to workers' compensation coverage for a work-related injury, because he was a partner in the business at the time of the injury and had not applied for or made an election of coverage. See ORS 656.027(8) (excluding certain partners from the category of "subject worker"); ORS 656.128(1) (providing that a member of a partnership may apply in writing for workers' compensation coverage). We review the board's order for substantial evidence and legal error, ORS 656.298(7) and ORS 183.482(8), conclude that the order is supported by substantial evidence and that the board did not err, and affirm.

         For context, we briefly set out the relevant statutory provisions. All "workers" subject to ORS chapter 656 are entitled to workers' compensation benefits for work-related injuries or illnesses. ORS 656.005(30) defines a "worker" as

"any person, including a minor whether lawfully or unlawfully employed, who engages to furnish services for a remuneration, subject to the direction and control of an employer and includes salaried, elected and appointed officials of the state, state agencies, counties, cities, school districts and other public corporations [.]"

         ORS 656.027 sets forth a lengthy list of "workers" who are not "subject" to ORS chapter 656. Business partners and sole proprietors are among those who are excluded, unless they elect to be covered. ORS 656.027 provides:

"All workers are subject to [ORS chapter 656] except those nonsubject workers described in the following subsections:
******
"(7)(a) Sole proprietors[.] ******
"(8) *** [P]artners who are not engaged in work performed in direct connection with the construction, [289 Or.App. 717] alteration, repair, improvement, moving or demolition of an improvement on real ...

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