In the Matter of the Compensation of Mark Pilling, Claimant.
TRAVELERS INSURANCE COMPANY and Sandra E. H. Pilling, dba ACTMESS, Respondents on Review. Mark PILLING, Petitioner on Review,
and submitted January 17, 2019
review from the Court of Appeals (WCB 14-00270) (CA
M. Quinn, Portland, argued the cause and fled the briefs for
petitioner on review.
Jonathan A. Rose, MacColl Busch Sato, PC, Portland, argued
the cause and fled the brief for respondent on review. Also
on the brief was J. William Savage.
Or. 237] Case Summary:
fled a claim for workers' compensation benefits for
injuries sustained while traveling for work for ACTMESS, a
business operated by claimant and his wife. ACTMESS was
registered as a sole proprietorship, with claimant's wife
as its authorized representative. Insurer denied the claim on
the ground that claimant was not an employee, but instead was
a partner and, as such, was a nonsubject worker under ORS
656.027. Nonsubject workers can apply for coverage pursuant
to ORS 656.128, but insurer contended that ACTMESS's
application did not meet the requirements of that statute.
The Workers' Compensation Board and the Court of Appeals
affirmed insurer's denial.
application under ORS 656.128 must be in writing, request
coverage for a specific person, and contain sufficient
information for an insurer to determine the person's work
classification and wage for the purposes of setting a
preliminary rate for the coverage; and (2) assuming that
claimant was a non-subject worker, ACTMESS's application
met the requirements of ORS 656.128 because it was a written
application for coverage for claimant, who was identified as
the business's only employee and whose work
classification and payroll information were provided.
decision of the Court of Appeals is reversed. The order of
the Workers' Compensation Board is reversed, and the case
is remanded to the board for further proceedings.
Or. 238] DUNCAN, J.
workers' compensation case, claimant Mark Pilling filed a
claim for medical benefits which insurer Travelers Insurance
denied. An administrative law judge (AL J) reversed
insurer's denial, but the Workers' Compensation Board
reversed the ALJ's order and reinstated insurer's
denial on the ground that claimant was a nonsubject worker
because he was a partner in the business for which he worked
and he had not applied for coverage as a nonsubject worker.
See ORS 656.027 (providing that "all
workers" are subject to the Workers' Compensation
Act, except listed "nonsubject workers," including
certain "partners"; ORS 656.128 (providing that
nonsubject workers can apply to be covered as subject
workers). The Court of Appeals affirmed the board's
order. Pilling v. Travelers Ins. Co., 289 Or.App.
715, 723, 412 P.3d 252, rev allowed, 363 Or. 104
(2018). On claimant's petition, we allowed review. As
explained below, we conclude that, even assuming claimant was
a nonsubject worker, he is entitled to coverage because the
business for which he worked made a specific written
application for workers' compensation coverage for him,
which insurer accepted. Therefore, we reverse the decisions
of the Court of Appeals and the Workers' Compensation
Board and remand to the board for further proceedings.
begin with the relevant facts, which we take from the
board's findings, and the ALJ's findings, which the
board adopted. ORS 183.482(7), (8) (on judicial review in a
contested case, a court reviews an agency's findings of
fact for substantial evidence); ORS 656.298(7) (providing
that review of workers' compensation cases shall be as
provided in ORS 183.482(7) and (8)); Multnomah County
Sheriffs Office v. Edwards, 361 Or. 761, 776, 399 P.3d
969 (2017) (if an agency's findings of fact are not
challenged, they constitute the facts for the purposes of
judicial review). Claimant worked for ACTMESS, a business
that specializes in the sale, service, and installation of
satellite communications systems. Since 2005, ACTMESS has been
registered as a sole proprietorship with claimant's wife,
Sandra [365 Or. 239] Pilling, as its authorized
representative. Both Sandra and claimant worked for ACTMESS.
Sandra developed business plans, bid on projects,
communicated with clients, and did the business's
paperwork and banking. Claimant provided the technical
knowledge and physical labor to install and integrate the
communications systems. Neither Sandra nor claimant received
paychecks from ACTMESS. Instead, monies received were used to
pay business expenses and any remainder was merged into the
August 2012, Sandra contacted Lackey Insurance Agency to
secure workers' compensation coverage in order to qualify
for an installation job with the City of Portland. Sandra
told the agent that she wanted coverage for claimant, but not
for herself. A two-part application was
completed.The application states that ACTMESS
connects clients to "mobile command centers through
satellite." It also identifies three work
classifications: one for clerical work (code 8810), one for
machinery dealers (code 8107), and one for electronic
equipment installation, service, and repair (code 9516).
Sandra is identified as the sole ...