Pilling v. Travelers Ins. Co. (In re Comp. of Pilling)
Pilling v. Travelers Ins. Co. (In re Comp. of Pilling)
Opinion of the Court
**238In this workers' compensation case, claimant Mark Pilling filed a claim for medical benefits which insurer Travelers Insurance denied. An administrative law judge (ALJ) reversed insurer's denial, but the Workers' Compensation Board reversed the ALJ's order and reinstated insurer's denial on the ground that claimant was a nonsubject worker because he was a partner in the business for which he worked and he had not applied for coverage as a nonsubject worker. See ORS 656.027 (providing that "all workers" are subject to the Workers' Compensation Act, except listed "nonsubject workers," including certain "partners"); ORS 656.128 (providing that nonsubject workers can apply to be covered as subject workers). The Court of Appeals affirmed the board's order. Pilling v. Travelers Ins. Co. ,
We begin with the relevant facts, which we take from the board's findings, and the ALJ's findings, which the board adopted. ORS 183.482(7), (8) (on judicial review in a contested case, a court reviews an agency's findings of fact for substantial evidence); ORS 656.298(7) (providing that review of workers' compensation cases shall be as provided in ORS 183.482(7) and (8) ); Multnomah County Sheriff's Office v. Edwards ,
In August 2012, Sandra contacted Lackey Insurance Agency to secure workers' compensation coverage in order to qualify for an installation job with the City of Portland. Sandra told the agent that she wanted coverage for claimant, but not for herself. A two-part application was completed.
In a section entitled, "REMARKS," the application states:
"EMPLOYEE (MARK PILLING, HUSBAND) HAS BEEN COMPUTER TECH FOR OVER 15 YEARS AND IN THIS LINE OF BUSINESS SINCE 1970. SANDRA IS A SMALL BUSINESS CONSULTANT. THEY HAVE EXPERIENCE RUNNING OWN BUSINESS FOR OVER 20 YEARS, NO EMPLOYEES."
(Capitalization in original.) After the application was submitted, an underwriting analyst with the National Council on Compensation Insurance, Inc. (NCCI) contacted Lackey twice for additional information and received written **240responses. The analyst first asked for additional information about the nature of the business and the duties performed, which was provided. The analyst then asked, "Who is performing the installation duties of satellite dishes? Can employees [and] payroll be separated for this? If so, please advise." In response, NCCI was informed, "Employee installs, services and repairs satellite dishes. $1500 of 8107 payroll can be put toward this. There is only one employee and he does everything."
Thereafter, insurer was assigned as the servicing carrier. Insurer subsequently issued a policy to ACTMESS, effective from August 23, 2012 through August 23, 2013.
ACTMESS was awarded the installation job with the City of Portland. In December 2012, claimant and Sandra travelled from their home in LaGrande and stayed near Portland for the job. While driving to the worksite on the last day of the job, claimant was involved in a vehicle accident, which resulted in physical injuries.
*1107Claimant filed a claim for workers' compensation benefits for his injuries. Insurer denied the claim. Claimant challenged the denial. A hearing was held, at which the only issue was whether claimant was a "subject worker."
After the hearing, the ALJ reversed insurer's denial. On administrative review, the Workers' Compensation Board reversed the ALJ's order and reinstated insurer's denial. The board concluded that claimant was not subject to the Workers' Compensation Act because he was a partner in ACTMESS and, therefore, he was a nonsubject worker **241under ORS 656.027, and he had not applied for coverage under ORS 656.128.
On judicial review, the Court of Appeals affirmed the board's order, holding that the board's determination that claimant was a partner was supported by substantial evidence, Pilling ,
On review, claimant argues that, even assuming ACTMESS was a partnership and he was a partner, ACTMESS's application for workers' compensation coverage for him met the requirements for an application for coverage for a nonsubject worker under ORS 656.128 and, therefore, he was eligible for workers' compensation benefits. Insurer disagrees, asserting that the Court of Appeals correctly held that ACTMESS's application was not sufficient because it did not specify that claimant was a partner.
The parties' arguments require us to interpret ORS 656.128. When interpreting a statute, our task is to discern the legislature's intent. PGE v. Bureau of Labor and Industries ,
ORS 656.128 provides, in part:
"(1) Any person who is a sole proprietor, or a member, including a member who is a manager, of a limited liability company, or a member of a partnership, or an independent contractor pursuant to ORS 670.600, may make written application to an insurer to become entitled as a subject worker to compensation benefits. Thereupon, the insurer may accept such application and fix a classification and an **242assumed monthly wage at which such person shall be carried on the payroll as a worker for purposes of computations under this chapter.
"(2) When the application is accepted, such person thereupon is subject to the provisions and entitled to the benefits of this chapter."
The text of ORS 656.128 supports several conclusions. First, it shows that the purpose of the statute is to provide a means for certain nonsubject workers to obtain workers' compensation coverage; it provides that a sole proprietor, a member of limited liability company, a partner, or an independent contractor may apply "to become entitled as a subject worker to compensation benefits." Second, it indicates that the statute concerns applications for coverage for a specific person;
*1108it uses the singular term "person" throughout. Third, it requires that applications for coverage be in writing, but it does not specify any other requirements for the form or content of the applications. And, fourth, it indicates that the purpose of the written application is to provide a prospective insurer with the information it needs to determine the rate for the requested coverage; it states that, upon receiving an application, an insurer may accept the application and "fix a classification and an assumed monthly wage."
The parties have not identified, and we have not found, any case law or legislative history that addresses the required contents of an application for coverage pursuant to ORS 656.128, although, as both parties note, the Court of Appeals has held that no particular form is required for such an application. SAIF v. D'Lyn ,
The application ACTMESS made for coverage for claimant satisfies those requirements. It conveys that Sandra, acting for ACTMESS, is applying for workers' compensation coverage specifically for claimant. Claimant is identified both by name and by his relationship to Sandra. As quoted above, the "REMARKS" section of the application begins by referring to "EMPLOYEE (MARK PILLING, HUSBAND)." The application describes the nature of the business and the duties of the workers and it includes the classification codes for those duties. It conveys that Sandra and claimant are the only persons who work for ACTMESS, and it specifies that Sandra is electing not to be covered. Moreover, the initial application was supplemented by the written responses to NCCI's inquiries, which provided additional information about claimant's specific duties and wages, including that "Employee installs, services and repairs satellite dishes. $1500 of 8107 payroll can be put toward this. There is only one employee and he does everything ." (Emphasis added.) Thus, the application was for coverage for a specific, identified individual, whose duties were described and whose wage information was provided.
Based on the content of the application ACTMESS made for coverage for claimant, we conclude that-even assuming claimant was a partner in ACTMESS-the application meets the requirements of ORS 656.128. Insurer accepted that application and, therefore, claimant was "entitled as a subject worker to compensation benefits." ORS 656.128(2).
As mentioned, insurer argues that the application at issue in this case does not meet the requirements of ORS 656.128, because, in its view, claimant is a partner, and the application does not specify that he is a partner. But nothing in the text of ORS 656.128 requires that the application **244specify the applicant's legal status. Insurer contends that the applicant's legal status is necessary to accurately assess policy premiums, but insurer has offered no cogent explanation as to why that is the case. And the text of the statute, which indicates that the premium is based on the applicant's work classification and assumed wage, suggests that it is not.
The decision of the Court of Appeals is reversed. The order of the Workers' Compensation Board is reversed, and the case is remanded to the board for further proceedings.
ACTMESS stands for "Always Connected Technologies, Mobile Emergency Support Systems."
The first part is entitled "Workers Compensation Application," and the second is entitled "Workers Compensation Insurance Plan Assigned Risk Section." (Capitalization modified.) The content of the application indicates that both parts were completed by Jacquelyn Harvey, an employee of Lackey Insurance, on behalf of Sandra, acting for ACTMESS.
Claimant asserted, and insurer did not dispute, that he was a "traveling employee" for the purposes of his claim. See SAIF v. Reel ,
The information in the application enables the insurer to set a rate for coverage, but-as the policy issued by insurer in this case states-an insured can be audited and the rate can be adjusted if the audit reveals information that differs from that in the application.
Insurer points out that there is a section on the "Workers Compensation Application" form for specifying whether "PARTNERS, OFFICERS, RELATIVES" are to be included or excluded from coverage. That section states that Sandra is the sole proprietor of ACTMESS and that she is to be excluded from coverage. Although claimant's information does not appear in that section, it is apparent from the application read as a whole that the application is for coverage of claimant, who is identified by name and as Sandra's husband and is described as the business's "one employee" who "does everything."
Reference
- Full Case Name
- In the MATTER OF the COMPENSATION OF Mark PILLING, Mark Pilling, on Review v. Travelers Insurance Company and Sandra E. H. Pilling, dba ACTMESS, on Review.
- Status
- Published