concurring.
ORS 656.3841 gives the court jurisdiction at this stage of the proceedings. If our review under that statute were de novo, I would reach a different result. To me, the facts indicate an employer-employe relationship.
However, as I understand the cases, whether plaintiff is an employe or an independent contractor is for *348the trier of fact to decide. On review, we determine only whether there is substantial evidence to support the finding below. I agree that there is. Ramseth v. Maycock, 209 Or 66, 71, 304 P2d 415 (1956); Butts v. State Ind. Acc. Comm., 193 Or 417, 422 and 428, 239 P2d 238 (1951); and Bowser v. State Indus. Accident Comm., 182 Or 42, 44 and 65, 185 P2d 891 (1947).
"(1) If an employer subject to ORS 656.001 to 656.794 is made defendant in any personal injury litigation brought against him by a workman in his employ, or by the guardian, personal representative or beneficiary of such workman, on account of injuries received by such workman arising out of and in the course of his employment by such employer, and it appears that the plaintiff’s sole right of recovery is under ORS 656.001 to 656.794, the board shall request the Attorney General to defend the employer in such litigation. The Attorney General shall cooperate with the board in such defense and represent the employer as attorney.
"(2) If the Attorney General files an answer in such litigation alleging the defense that the plaintiffs sole remedy is under the Workmen’s Compensation Law, the filing of such answer shall suspend all further proceedings in such litigation other than the trial of the defense that the plaintiffs right of recovery is under the Workmen’s Compensation Law, until such defense has been finally determined by the court. An appeal to the Supreme Court from the order or judgment finally disposing of such defense may be taken by either party as in other cases.” ORS 656.384.