Sedgwick CMS v. Barreras ( 2024 )

No. 704 October 2, 2024 351
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
In the Matter of the Compensation of
Chris Barreras,
Claimant.
SEDGWICK CMS,
Petitioner,
v.
Chris BARRERAS,
Respondent.
Workers’ Compensation Board
2100833, 2005496;
A178529
Argued and submitted October 23, 2023.
Rebecca A. Watkins argued the cause for petitioner. Also
on the briefs was SBH Legal.
Betsy Wosko argued the cause for respondent. Also on
the brief was Welch, Bruun & Green.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Affirmed.
352 Sedgwick CMS v. Barreras
HELLMAN, J.
Petitioner seeks judicial review of a Workers’
Compensation Board (board) order on review affirming an
administrative law judge (ALJ) order. In two assignments
of error, petitioner contends that the board erred when it
concluded that claimant met the statutory definition of a
“worker” and that an employment relationship existed. As
explained below, we affirm.
“We review an agency’s order in a contested case
for errors of law, ORS 183.482(8)(a), substantial evidence,
ORS 183.482(8)(c), and substantial reason[.]” Dorn v.
Teacher Standards and Practices Comm., 316 Or App 241,
243, 504 P3d 44 (2021). “Substantial evidence exists to sup-
port a finding of fact when the record, viewed as a whole,
would permit a reasonable person to make that finding.”
ORS 183.482(8)(c). “Substantial reason exists where the
agency has articulated a rational connection between the
facts and the legal conclusion that the agency draws from
them.” Dorn, 316 Or App at 243 (internal quotation marks
omitted).
A detailed recitation of the facts in this case would
not benefit the bench, the bar, or the public. According
to claimant, he had transported horses for employer—
his mother’s business—for more than a decade when his
mother directed him to transport horses from California to
Oregon in March 2020. While driving employer’s vehicle to
California, claimant was injured in a collision.
After petitioner denied claimant’s claim, claimant
and his mother testified at the administrative hearing and
several exhibits were entered into evidence. The ALJ deter-
mined that claimant was a subject worker, not an indepen-
dent contractor, and the board adopted and affirmed the
ALJ’s order. Petitioner then sought judicial review.
“Worker” under ORS 656.005(30). In its first assign-
ment of error, petitioner argues that the board “erred in deter-
mining that claimant met the definition of a worker” under
ORS 656.005(30) (2019), amended by Or Laws 2021, ch 257,
Nonprecedential Memo Op: 335 Or App 351 (2024) 353
§ 1; Or Laws 2022, ch 6, § 5; Or Laws 2023, ch 87, § 2.1 We
disagree.2
Under ORS 656.005(30), a “worker” is “any person
* * * who engages to furnish services for a remuneration,
subject to the direction and control of an employer.” To
determine whether a claimant is subject to an employer’s
“direction and control,” we apply the “right to control” and
the “nature of the work” tests. SAIF v. DCBS, 250 Or App
360, 364, 284 P3d 487 (2012).3
As an initial matter, we disagree with petitioner’s
argument that the board “failed to apply” the two tests and
“did not address all factors or consider all facts.” We consid-
ered a similar argument in DCBS v. Clements, 240 Or App
226, 232, 246 P3d 62 (2010). After noting the petitioner’s
argument that “the ALJ simply ‘failed to consider the first
element’ of the statutory test,” we explained:
1
All statutory references in this nonprecedential memorandum opinion are
to the 2019 versions of the statute. See ORS 656.202(2) (“[P]ayment of benefits for
injuries or deaths under this chapter shall be continued as authorized, and in the
amounts provided for, by the law in force at the time the injury giving rise to the
right to compensation occurred.”).
2
At the outset, we reject petitioner’s argument that the board “unreason-
ably failed to make a necessary credibility assessment of competing testimony.”
We have previously determined that express credibility determinations are not
required “when a claimant’s testimony is contradicted by other evidence on which
the referee based the findings.” Bird v. Employment Division, 90 Or App 404,
406, 752 P2d 1239 (1988). That is so, because “[t]he inference under such circum-
stances is clear: The claimant’s testimony was not believed, and no explanation is
necessary.” Id. Here, the record contained competing testimony on the key issues
and the board’s findings demonstrate that it credited claimant’s testimony over
his mother’s. The record is sufficient to support the board’s findings and express
credibility determinations were not necessary. See Sen v. Employment Dept., 218
Or App 629, 633, 180 P3d 95 (2008) (concluding that “express credibility find-
ings are only necessary when a reviewing court would not otherwise be able to
find support in the record for the referee’s decision” (internal quotation marks
omitted).).
3
“The ‘right to control’ test has four factors: (1) direct evidence of the right
to, or exercise of, control; (2) the furnishing of tools and equipment; (3) the method
of payment; and (4) the right to fire.” DCBS v. Clements, 240 Or App 226, 234,
246 P3d 62 (2010) (internal quotation marks omitted). “Factors relevant to the
‘nature of the work’ test have included considerations such as whether the work
done is an integral part of the employer’s regular business and whether the indi-
vidual, in relation to the employer’s business, is in a business or profession of his
or her own.” Rubalcaba v. Nagaki Farms, Inc., 333 Or 614, 619 n 2, 43 P3d 1106
(2002).
354 Sedgwick CMS v. Barreras
“[W]e are not persuaded that the ALJ failed to consider the
first part of the test. The ALJ’s order recites the relevant
text of the statute and, following that recitation, discusses
whether there is evidence of [remuneration] * * * That dis-
cussion occurs within a broader discussion of the ‘right
to control,’ but we are nonetheless satisfied that the ALJ
understood the applicable statute, applied the proper test
in determining whether claimant was a ‘worker,’ and deter-
mined—implicitly, at the very least—that claimant and
[the employer] agreed that claimant would provide services
for remuneration.”
Id. at 232-33. Similarly, in this case, although the board
did not analyze separately each factor of the “right to con-
trol” and “nature of the work” tests, the order nevertheless
demonstrates that the board understood the applicable stat-
ute and applied the proper tests. That is adequate. See id.
In addition to broadly challenging the board’s
application of both tests, petitioner specifically disputes the
board’s finding that employer had the “right to fire” claim-
ant because it “unreasonably interpreted” a contract term
and otherwise “dismissed the contract without any assess-
ment of its terms.” We disagree. Even though the contract
could be viewed to support petitioner’s position, petitioner
acknowledges that the board also considered other evidence
in making its finding. Under our standard of review, we “[do]
not review for the better evidence[;] * * * substantial evidence
review does not entail or permit the reviewing tribunal to
reweigh or to assess the credibility of the evidence that was
presented to the fact-finding body.” Gaylord v. DMV, 283 Or
App 811, 822, 391 P3d 900 (2017) (internal quotation marks
omitted). Because the record, when viewed as a whole, per-
mits a reasonable person to find that employer had the right
to fire claimant, substantial evidence supports that finding.
See Elsea v. Liberty Mutual Ins., 277 Or App 475, 484, 371
P3d 1279 (2016) (“If the board’s finding is reasonable in the
light of countervailing as well as supporting evidence, then
the finding is supported by substantial evidence.”).
Having reviewed the record, we conclude that sub-
stantial evidence and substantial reason support the board’s
determination that claimant was subject to employer’s direc-
tion and control. The board did not err when it concluded
Nonprecedential Memo Op: 335 Or App 351 (2024) 355
that claimant met the definition of a “worker” under ORS
656.005(30).
Independent contractor. In its second assignment of
error, petitioner argues that the board “erred in finding an
employment relationship rather than an independent con-
tractor relationship.” In particular, petitioner asserts that
the board “inaccurately applied” the independent contractor
factors under ORS 670.600(2) and that its findings were not
supported by substantial evidence. We disagree.
To qualify as an independent contractor, a person
must, among other statutory criteria, “customarily engage[ ]
in an independently established business.” ORS 670.600(2)(b);
Whitsett v. Employment Dept., 251 Or App 699, 701, 284 P3d
594 (2012) (“The statutory criteria are conjunctive; a person
is not considered an ‘independent contractor’ unless each is
met.”). “Further, for purposes of ORS 670.600(2)(b), a person
is considered to be ‘customarily engaged in an independently
established business’ if any three of the * * * requirements [of
ORS 670.600(3)] are met[.]” Whitsett, 251 Or App at 701.
Here, the board found that four requirements of
ORS 670.600(3) “weigh[ed] strongly against the suggestion
that claimant had an independent business” and that one
requirement was “mixed.” After making findings concern-
ing those requirements, the board emphasized that claimant
transported horses for employer “150-180 hours per month.
In other words, this was a full-time job.” As a consequence,
the board determined that claimant was not engaged in an
independently established business.
We have reviewed the record and conclude that the
facts found by the board support its legal conclusions. See id.
at 703 (explaining that “even if we were to consider [the] peti-
tioner entitled to every plausible inference from the record,”
the individual failed satisfy three requirements of ORS
670.600(3)). The board did not err when it concluded that
claimant was a subject worker, not an independent contrac-
tor. See id. (“Because [the] petitioner did not establish that
[the individual] satisfied three of the five factors set forth in
ORS 670.600(3), [the] petitioner failed to demonstrate that
[the individual] customarily engaged in an independently
356 Sedgwick CMS v. Barreras
established business. Therefore, the services * * * were per-
formed by an employee, not an independent contractor[.]”).
Affirmed.