Vestal v. Barrett Business Services
Vestal v. Barrett Business Services
Opinion of the Court
Claimant seeks review of a final order in which the Workers’ Compensation Board held that respondent Barrett Business Services was not his employer at the time of his injury. The Board rejected claimant’s contention that he was an employee of Wayne Allen and Allen Family Construction, which had an agreement with Barrett by which Allen’s workers became employees of Barrett, which then leased the workers to Allen.
We state the facts as the Board found them; claimant does not challenge those findings. On October 5, 1996, claimant went to a street comer in Portland seeking work to fill a few days when his regular employer would have nothing available. Allen pulled up at the corner in a tmck that had a sign that said “Allen Family Construction” and that offered roofing services. He shouted “work” in Spanish; claimant and several other workers got into the truck. Allen took the workers to an apartment complex in Beaverton where he put them to work removing rotten siding. Claimant used tools that Allen provided. Jackson had a contract that included replacing the siding on the complex and had engaged Allen to assist, because Allen had siding experience, which Jackson did not.
Claimant saw Jackson at the work site but did not know who he was. Other workers talked with Jackson, who
From these facts the Board concluded that Allen was Jackson’s employee and that Allen had hired claimant on Jackson’s behalf, not his own. In doing so, it emphasized its findings that Jackson had a contract with the building owner to replace the siding, that Allen’s normal business was roofing, and that Jackson hired Allen to work outside of the normal work of his business because of Allen’s experience with siding. The Board recognized that Allen’s actions after the accident suggested that he felt exposed to a workers’ compensation claim, but it concluded that those actions were not sufficient to show that Allen was the employer.
On review, claimant argues that Allen was his employer as a matter of law, because Allen had and had exercised the right to control claimant’s work. ORS 656.005(13); see Trabosh v. Washington County, 140 Or App 159, 915 P2d 1011 (1996). As we pointed out in Trabosh, when the facts are undisputed, whether a person is an employee or an independent contractor is a matter of law for the court. 140 Or App at 163. Here, if Allen was an independent contractor, then claimant was his employee; if Allen was Jackson’s employee, then claimant was also.
Affirmed.
Allen was the owner and sole proprietor of Allen Family Construction. Barrett was responsible for workers’ compensation coverage for the employees whom Allen hired under the agreement. We will hereafter refer to Allen or Allen Family Construction, rather than Barrett, as claimant’s putative employer.
At the end of the job, Jackson paid Allen by a check for $1,800 without deducting taxes or other amounts from the check.
Although claimant did not know so at the time, the ladder belonged to Jackson.
The Board implicitly rejected claimant’s argument that he was a joint employee of Allen and Jackson when it found that Allen was Jackson’s employee.
Claimant also asserts on review that Allen was an independent contractor as a matter of law under ORS 656.027(7Xb), because he was registered with the Construction Contractor’s Board and claimant was engaged in work within the scope of that registration. Claimant did not make that argument, or any argument tangentially related to it, to the Board, and we therefore do not consider it. Claimant also did not argue, at the Board or on review, that Allen was a party to the employment contract because he was an agent for an undisclosed principal. See Salem Tent & Awning v. Schmidt, 79 Or App 475, 478-79, 719 Or 899, rev den 302 Or 36 (1986).
Case-law data current through December 31, 2025. Source: CourtListener bulk data.