SAIF Corp. v. Department of Consumer & Business Services Insurance Division
250 Or. App. 360
Or. Ct. App.2012Background
- NWCT operated an acting school and theater in Portland; SAIF audited NWCT for July 1, 2006 to July 1, 2007 and billing determined all individuals providing services were workers needing NWCT workers’ compensation coverage.
- NWCT paid workers’ comp for 13 individuals; others were treated as independent contractors and were subject to a premium audit dispute before DCBS.
- ALJ found instructors and instructional assistants were workers, while production designers and actors were not; DCBS director adopted these conclusions with one deviation.
- DCBS ultimately held the right to control test conclusively showed non-employment for instructors, production designers, and actors and deleted consideration of the nature of the work test.
- SAIF argued that when some evidence suggests control but others do not, both the right to control and nature of the work tests must be applied; DCBS disagreed, relying on Stamp to limit the nature of the work test.
- The issue on judicial review was whether the agency erred in relying solely on the right to control when some evidence showed control and some did not.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Must both tests be used when evidence of control is mixed? | SAIF: when control evidence exists in part, apply both tests. | DCBS: if right to control is conclusive, the nature of the work test is inapplicable. | Apply both tests when some control evidence exists. |
| Were instructors, production designers, and actors workers under ORS 656.005(30)? | SAIF: these positions were subject workers requiring coverage. | DCBS: right to control test leads to non-worker status for these roles. | There was some evidence of control; remand to determine status using both tests. |
| Did Stamp v. DCBS preclude applying the nature of the work test when control evidence exists? | SAIF: Rubalcaba requires considering both tests; Stamp does not control here. | DCBS: Stamp supports applying nature of the work only if control is inconclusive. | Stamp does not foreclose applying the nature of the work test when control evidence is present. |
Key Cases Cited
- Woody v. Waibel, 276 Or 189 (1976) (nature of work test necessary alongside right to control)
- Rubalcaba v. Nagaki Farms, Inc., 333 Or 614 (2002) (applies both tests when control is present in some aspects)
- Stamp v. DCBS, 169 Or App 354 (2000) (nature of work test considered if right to control is inconclusive)
- Coghill v. Natl. Council on Comp. Ins., 155 Or App 601 (1999) (factors supporting right to control considered)
- Bovet v. Law, 214 Or App 349 (2007) (evidence of mixed control points can require nature of the work analysis)