dissenting.
I agree with the majority that Robinson was an "employe” of Omark for purposes of Workers’ Compensation. I further agree that an employer may discharge its obligation to provide compensation coverage, and thereby become an exempt employer (ORS 656.018), by contracting with a labor broker that supplies such coverage. I part company with the majority, however, on its treatment of the Employers’ Overload (EO) "policy” of not permitting its workers to be assigned to machinery or motor vehicles without prior authorization (which I perceive to be a contractual condition). I further disagree that an employer that is relying for its exemption on coverage furnished by a labor broker may ignore conditions placed by the broker on the scope of work its employes may perform which are clearly aimed at promoting safety and minimizing the compensable injuries which form the basis of its insurance premiums.
The restriction in question appears on the back of time cards which EO employes take to the job and which are signed by the employer. These cards state above the signature line:
*270"Your signature certifies approval of above hours and acceptance of terms and conditions on reverse side.”
These time cards are the basis on which EO’s employes are paid and for charging EO’s clients. They had been used by the parties for several years and Omark’s representative testified he was familiar with the conditions stated thereon.
At the hearing, Omark did not deny that the restriction was part of the contract between Omark and EO, but, rather, directed its evidence at showing a waiver of another term on the back of the card (prohibiting a client from hiring an EO employe earlier than 90 days after that employe first came to work for the client). EO’s representative testified that that particular provision had been waived in Omark’s case. She further testified that the work restriction had not been waived, although there had never been any occasion for dispute between EO and Omark. She stated that EO attempted to match its employes to job requirements and that, had she been aware that Robinson had been assigned to a machine, she would have objected. Omark offered no evidence, although it clearly could have, that it had assigned EO employes to machinery in the past, with or without EO’s knowledge.
The majority concludes that the trial court must have found as a fact (although the trial court made only a finding that Omark was a "special employer”) that the restriction was not a part of any contract. Under the any-evidence test which comprises our standard of review, Cornelison v. Seabold, 254 Or 401, 460 P2d 1009 (1969), we are bound by this "finding” if there is any evidence to support it. I believe there is none.
The time card is the memorandum which fixes the parties’ obligations to pay. This is a contract. In fact, it is the same contract upon which the majority relies to satisfy the first prong of ORS 656.005(16) (defining *271"employer”). If Omark is not an employer of plaintiff, it is not exempt from suit. ORS 656.018(1)(a). There was no evidence of waiver here. The "helpful hint” to which the majority refers is contained in a brochure comprised entirely of forms which are undoubtedly sent to clients besides Omark and which describe generally the type of services EO provides. The fact that the "helpful hint” contemplates a situation in which EO, having received notice that the person it assigns is to operate a machine, might authorize such work can in no way support a finding that the restriction was waived or that, in this instance, as the majority characterizes it, it was a "policy” which hadn’t been effectively brought home to Omark.
I agree with the majority that it would be pointless in cases such as this to attempt to determine which employer had the right to direct the injury-causing aspect of a claimant’s employment. Right of control is a question of fact and a contractual restriction is only one factor to be considered. I disagree, however, that the restriction at issue here has no effect on whether Omark is a complying employer. In my view, the condition limits the situation in which EO agrees to provide compensation coverage on its employes. If Omark, as it did here, oversteps the bounds of that agreement, it can no longer rely on EO to provide coverage.
This case is admittedly a difficult one on its facts, because the plaintiff received compensation and EO is not a party to this suit. As the majority summarizes:
"* * * After all, the purpose of the law is to promote workers’ compensation coverage, not to create technicalities that permit a person in plaintiffs position to obtain a workers’ compensation award from one of his employers and a tort judgment from another of his employers for the same injury.” 46 Or App at 269.
The fact that a worker has received compensation does not of itself bar a tort action against a third party. See Virgil v. Walker, 280 Or 607, 611, 572 P2d 314 *272(1977). Moreover, in situations legally indistinguishable from the present facts, the rule set forth by the majority could produce a less palatable result. If, for example, plaintiff had been critically injured while operating a fork lift or a "Kelly girl” had been injured while assigned to a punch press, it is likely, in my opinion, that the labor broker’s insurance carrier would deny the claim, relying on the contract restriction. (The claim could arguably have been denied here.) In such a case, assuming the denial was well-founded, neither employer would be in compliance and both would be subject to suit, even though the labor broker had no knowledge that its employe was assigned a more hazardous task than it had contemplated when it secured insurance coverage.
The alternative for a labor broker under the majority’s holding is to insure all its employes against all risks. It apparently cannot limit its exposure by means of contractual restrictions on the type of work its employes may be assigned. The labor broker would be relegated to an action for breach of contract against its clients with the attendant problem of showing to what extent a particular injury caused an increase in its insurance premiums and the duration of that increase.
In my view, the more sensible rule would be to hold that Omark was a complying employer for workers’ compensation purposes so long as it complied with the restrictions in the contract. Omark could have obtained a waiver of the restriction here or requested EO to send an employe who was authorized to operate machinery. I would hold that Omark, in breaching the condition of the contract, lost its right to rely on the coverage provided by EO under the same contract, and is therefore subject to suit.
For the foregoing reasons, I respectfully dissent.