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In re Compensation of Pilling

Supreme Court of Oregon, En Banc

July 18, 2019

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

          Argued and submitted January 17, 2019

          On review from the Court of Appeals (WCB 14-00270) (CA A161600).[*]

          Julene 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.

         [365 Or. 237] Case Summary:

         Claimant 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.

         Held:

         (1) An 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.

         The 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.

         [365 Or. 238] DUNCAN, J.

         In this 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.

         We 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.[1] 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 family's finances.

         In 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.[2]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 ...


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