Bell v. Hartman , 44 Or. App. 21 ( 1980 )

JOSEPH, P.J.,

specially concurring in part and dissenting in part.

The majority concludes that claimant was not an employee within the terms of the Worker’s Compensation Law of the owners of the horse from which he fell. I concur in that conclusion in this case, but I would be hesitant to draw a general rule about jockeys’ employment status from the present special facts. Given the peculiar circumstances of the horse racing business, I would hope that the legislature would clarify jockeys’ status by a general rule.

The opinion proceeds to hold the non-employee claimant to be entitled to interim compensation (and, presumably, attorney fees and penalties!) because he made a claim which was not timely denied by the "employers” or carriers. From that I dissent. I need really go no farther than the first clause of ORS 656.054(1):

"A compensable injury to a subject worker while in the employ of a non-complying employer is compensable ***.” (Emphasis supplied.)

The whole purpose and scheme of the Worker’s Compensation Law is to provide covered employees protection paid for or by responsible employers. The law was not meant to provide protection for non-employees who get their feet in the door of the system. The majority’s position could create a flood of speculative and spurious claims, because there is always a chance that a non-employee could win something from the vagaries of the administration of the system. I would not encourage that.