R.C. OGDEN, INC. v. NATL. COUNCIL ON COMP. INS., 119 Or. App. 334 (1993)

850 P.2d 1146

91-01-016; CA A73667Oregon Court of Appeals.Argued and submitted January 25, 1993
Affirmed on petition and on cross-petition April 21, 1993

Judicial Review from Department of Insurance and Finance.

Robert J. Thorbeck, Salem, waived oral argument for petitioner — cross-respondent.

Michael Whitty, Special Assistant Attorney General, Salem, argued the cause for respondent — cross-petitioner.

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With him on the brief were Charles S. Crookham, Attorney General, and Virginia L. Linder, Solicitor General, Salem.

No appearance for respondent National Council on Compensation Insurance.

Before Rossman, Presiding Judge, and De Muniz and Leeson, Judges.

ROSSMAN, P.J.

Affirmed on petition and on cross-petition.

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ROSSMAN, P.J.

Petitioner R.C. Ogden, Inc., and respondent SAIF both seek review of a decision of the Department of Insurance and Finance (DIF) in this premium audit dispute. ORS 183.480; ORS 183.482.

Petitioner had logging contracts with several timber owners. Steve Richmond, dba Richmond Timber Products, worked for petitioner as a cutter. Richmond later worked for petitioner using his own skidder — a motorized vehicle used to transport logs from the “fell” site to the transport site.

SAIF is the insurer. Its audit of petitioner’s account classified Richmond as a subject worker, and SAIF charged petitioner a premium based on wages paid to Richmond for his work as a cutter. SAIF also charged a premium based on an amount paid to Richmond for his work with the skidder. Petitioner appealed the assessment to DIF.[1] In its final order on reconsideration, DIF held that Richmond was a subject worker while working as a cutter and that the assessment properly included amounts paid to him for that job. DIF held, however, that Richmond was exempt from coverage under ORS 656.027(14)(a) for his skidder operations.

Petitioner assigns error to DIF’s determination that Richmond was a subject worker while working as a cutter. DIF’s findings are supported by substantial evidence, and they support the conclusion that Richmond was a subject worker while working as a cutter. Armstrong v. Asten-Hill Co., 90 Or. App. 200, 752 P.2d 312
(1988).

On cross-petition, SAIF assigns error to DIF’s conclusion that Richmond was not petitioner’s employee for purposes of his skidder operations. The thrust of SAIF’s argument is that skidders are not “motor vehicles” under ORS 656.027(14)(a), and that, therefore, Richmond was a subject worker. SAIF is incorrect. Slater Logging, Inc. v. Natl. Council on Comp. Ins., 119 Or. App. 168, 849 P.2d 548 (1993); Crisstad Enterprises v. Natl. Council on Comp. Ins., 118 Or. App. 416, 847 P.2d 896 (1993). Richmond was exempt from coverage under ORS 656.027(14)(a) for his skidder

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operations, and SAIF incorrectly charged petitioner premiums based on amounts paid to him for those operations.

Affirmed on petition and on cross-petition.

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