dissenting.
The majority concedes that the hearings officer erred in his application of the law in this case. In arriving at his conclusion that Gary was Roy’s worker rather than an independent contractor, the hearings officer concluded that the “right to control” test was inconclusive and applied the “nature of the work” test. The hearings officer’s conclusion that the analysis under the “right to control” test was inconclusive was error because he conflated the requirements of the “right to control test” and “the nature of the work test.” However, the majority relies on the hearings officer’s findings, which it finds are supported by substantial evidence, to conclude that Roy had the right to control Gary’s day-to-day activities, contrary to the hearings officer’s conclusion. Had the hearings officer and the majority applied the law correctly, they would have determined that Gary was an independent contractor under the “right to control test.”
*366According to his opinion, the hearings officer’s conclusion is based on the following ultimate findings of fact:
“Roy Stamp did not direct or control the day-to-day work of Gary Stamp.
“Roy Stamp retained the right to direct or control the day-to-day work of Gary Stamp.
“Gary Stamp provided all of his own tools and equipment for performing the work.
“Gary Stamp was paid on an hourly basis and on the basis of the amount of material installed.
“Gary Stamp has one employee while working on jobs for Roy Stamp but did obtain not [sic] workers’ compensation until May 24,1994.”
Initially, it is important to note that the hearings officer’s “finding” that Roy retained the right to direct or control the day-to-day work of Gary Stamp is not a “finding of fact” but a legal conclusion. When the facts are generally undisputed as they are in this case, the question of “worker” or “independent contractor” status is a question of law. Woody v. Waibel, 276 Or 189, 192 n 3, 554 P2d 492 (1976).1 The answer to whether Roy had the right to control Gary’s day-to-day activities is a legal conclusion that is to be reached by applying the applicable law to all of the pertinent facts.
As the court in S-W Floor Cover Shop v. Natl. Council on Comp. Ins., 318 Or 614, 630, 872 P2d 1 (1994), explained, “[t]he initial determination of whether one is a ‘worker’ under ORS 656.005(28) continues to incorporate the judicially created ‘right to control’ test.” The application of that test involves several considerations:
“Factors considered by the courts in determining whether a ‘right to control’ establishes an employment relationship has included, for example: whether the employer retains the right to control the details for the method of performance; the extent of the employer’s control over work schedules; and whether the employer has power to discharge the person without liability for breach of contract. Payment of *367wages is also a factor, although it is not considered decisive where it is shown that the employee was actually under the control of another person during the progress of work.” S-W Floor Cover Shop, 318 Or at 622 (citations and internal quotes omitted).
The hearings officer concluded that the fact that Gary provided his own tools and equipment for performing the work supported a conclusion of independent contractor status. He also ruled that the fact that Gary was paid on the basis of the amount of material installed was a neutral factor. Obviously, the findings that Gary had his own employee while working on jobs for Roy and that Roy did not actually direct or control the day-to-day work of Gary also support a conclusion of independent contractor rather than worker status. In addition, the hearings officer found that: (1) Gary “had the right to refuse any particular job”; (2) Gary “needed no oversight from Roy * * * to perform this work”; (3) Gary “did business as a sole proprietor under the assumed business name Style Tile”; (4) “[o]ne of the jobs he routinely subcontracted out during the audit period was the finish tile and brick work which he subcontracted to his brother”; (5) Gary “held himself out to perform ceramic tile work on jobs that were not related to his brother’s swimming pool construction”; (6) Gary “worked on three jobs during the audit period for persons other than his brother”; (7) “[o]nce Roy * * * had a contract to construct a pool, * * * Gary * * * scheduled the work on his calender”; (8) Gary’s “charges were based on the amount of tile or other material installed”; and (9) Gary “was paid after the completion of the work based on a price list that Gary established in advance of the job.” Finally, there is no evidence of a written contract between Roy and Gary that gives Roy the right to control the day-to-day activities of Gary.
Having made the above findings, the hearings officer was required to apply the proper legal test in order to arrive at a correct conclusion of law. As S-W Floor Cover Shop instructs, the hearings officer should have inquired whether the above findings demonstrate that Roy retained the right to go on the job site and could have directed the particulars of how Gary laid the tile and performed the job as any supervisor of a worker would; whether he could have controlled the *368hour-by-hour performance of when, where and how Gary worked; and whether he could have discharged Gary in the midst of a job without liability for breach of contract. The right to control the day-to-day activities of a worker is best illustrated by contrasting it with the right to control the end result. The former exists in a “worker” relationship but not in an independent contractor relationship.
As the majority apparently concedes, the hearings officer looked to facts other than those prescribed by the Supreme Court in S-W Floor Cover Shop to arrive at a conclusion that Roy retained the right to control. Those facts included: (1) Roy designating which job Gary was to work on; (2) Roy’s expectation that Gary would complete the job in accordance with Roy’s general specifications; (3) “90 percent of [Gary’s] income during the audit period was from performing ceramic the installation for swimming pools constructed by his brother”; and (4) “[c]ustomers, either general contractors or homeowners, dealt primarily with [Roy].” The majority deems those factors relevant, and, while I agree that they are relevant, they are not legally sufficient as a matter of law to demonstrate “worker” status. Rather, they are characteristic of both “independent contractor” and “worker” relationships, and thus do little to inform the inquiry.
Consequently, the majority’s deference to the facts relied on by the hearings officer while at the same time properly recognizing that the hearings officer “misconstrued and misapplied” the law is error. When all of the hearings officer’s findings are considered,, including those relied on by the majority, there is only one correct legal conclusion that can be reached: the employment relationship between Roy and Gary was an independent contractor relationship. That conclusion necessarily follows because Roy retained no express authority to direct or control the day-to-day work, nor did he ever exercise such control during the audit period. What is left to consider is whether Roy had the implicit right to control Gary’s day-to-day activities based on the circumstances of their relationship. Those circumstances include the fact that Gary bid on jobs individually and set his own compensation for ids work. He was not a salaried employee, but was paid for the work completed. He provided all of his own tools, equipment and materials for the performance of his work. He *369could refuse to work or choose to work on a particular job. He determined when he would work. He worked for other people and held himself out as an independent contractor to the public. All of those circumstances are antithetical to “worker” status.
The majority and I also differ regarding the significance of our holding in Oregon Drywall Systems v. Natl. Council on Comp. Ins., 153 Or App 662, 985 P2d 195 (1998). Although it can be said generally that no one case in this area of the law will ever be controlling because of differing circumstances, our precedents can be instructive in what factors to consider in determining whether worker or independent contractor status exists. In Oregon Drywall, we held that independent contractor status existed as to subcontractors with special expertise and some of whom worked only for the employer. 153 Or App at 665, 669. The import of those facts will vary from case-to-case, but our holding in Oregon Drywall is instructive on how to view properly the facts in this case in light of the hearings officer’s findings that Roy had other workers who could not do tile work and, thus, he was required to “subcontract” that work out to Gary and the majority’s emphasis on the fact that 90 percent of Gary’s work during the audit period was done for Roy.2
At the heart of the dispute between myself and the majority is a concern about where the majority opinion takes the law in this area when it affirms the hearings officer after he misconstrued and misapplied the appropriate legal tests. I am persuaded, based on the provisions of ORS 656.027 (1993); ORS 670.600 (1993) and ORS 656.005(30) and (31) and the Supreme Court’s holding in S-W Floor Cover Shop that the law requires that a distinction be preserved between “worker” and “independent contractor” status. At stake in the making of that distinction is a policy judgment made by the legislature that the many small businesses who operate as independent subcontractors for general contractors in the building trades all over the state are not subject to the reach *370of the workers’ compensation law unless the general contractor exercises more than control over the end result. We frustrate that policy through judicial fiat if we permit the division to adjudicate on a basis that is not in accordance with the legislature’s intent. In my view, the facts of this case present a classic example of an independent contractor relationship typically found in the construction industry. For these reasons, I dissent from the affirmance of the hearings officer’s ruling that Gary was Roy’s “worker.”
Landau and Linder, JJ., join in this dissent.Our opinions have also held that the question of “whether a right to control exists under the facts as found is a question of law for the court." HDG Enterprises v. Natl. Council on Comp. Ins., 121 Or App 513, 518, 856 P2d 1037 (1993).
The hearings officer did not have the benefit of our opinion in that case when he decided this case.