Atwood v. State Accident Insurance Fund

LANGTRY, J.

This is a claimant appeal from successive orders of a referee, the Workmen’s Compensation Board and the circuit court, each holding that claimant, a logging truck operator, was an independent contractor, and not an employe. Claimant was injured in May 1974 while logs were being unloaded from his truck. He owned the truck and hauled logs from the woods to the log dump under almost identical circumstances as those related in our recent opinion in Woody v. Waibel, 24 Or App 341, 545 P2d 889 (1976). This is so even to the fact that the "employer” had never provided workmen’s compensation, or had never engaged in any type of withholding from pay for taxes, etc., as is commonly done by an employer. Claimant had always done his own tax and other kinds of bookkeeping, and had himself made the payments. For three years he had made his own payments for workmen’s compensation coverage, along with payments that covered anyone who might briefly work for him. At the time of his injury he had let his own coverage payments lapse, but had kept up the coverage in the same way as previously for other employes. The totality of these actions by "employer” and claimant indicates to us that there was some understanding — regardless of whether it was clearly spelled out — that the employer would not provide coverage. This is different than a situation where the employer unilaterally says, "I won’t provide coverage” and by that unilateral declaration presumes to change what otherwise would be an employe-employer relationship.

The primary determination in cases like this depends on the initial tests set out in Bowser v. State Indus. Accident Comm., 182 Or 42, 185 P2d 891 (1947), which we applied in Woody, and which we have primarily compared to the facts in this case. Where the result is close, as it is here, then other tests, like the evidence of a tacit agreement such as we have men*806tioned, are some additional evidence of the nature of the relationship.

Affirmed.