Randall v. Ocean View Construction Co.

EDMONDS, J.,

concurring.

I concur with the majority’s result, but I believe there is a more straightforward analysis that is available than the one that the majority uses. Based on the ordinary meaning of the words in the controlling statute and keeping in mind the overall goal of the workers’ compensation law to afford remedies to workers who suffer work-related injuries, the issue before us can be resolved by understanding the import of the words of ORS 701.005(2).

ORS 701.005(2) provides:

“ ‘Contractor’ means a person who, for compensation or with the intent to sell, arranges or undertakes or offers to undertake or submits a bid to construct, alter, repair, add to, subtract from, improve, inspect, move, wreck or demolish, for another, any building, highway, road, railroad, excavation or other structure, project, development or improvement attached to real estate or to do any part *161thereof. ‘Contractor’ includes general contractors, residential-only contractors and specialty contractors as defined in this section.”

The definition of the word “contractor” in ORS 701.005(2) contemplates two discrete events that qualify a person or an entity as a “contractor.” The first part of the statute focuses on an event that occurs before the work is performed. To be a “contractor” is to arrange, or undertake or offer to undertake, or submit a bid to do the work as a non-employee. The terms, “arranges,” “offers,” “undertakes,” or “submits a bid” are all synonyms that describe the first event that occurs. That kind of event, together with the owner’s acceptance, meets the first qualification under the statute. The second event contemplated by the statute, “to construct, alter, repair, add to, subtract from, improve, inspect, move, wreck or demolish for another, any building,” focuses on the work performed in relation to the first event. However, employees also perform those kinds of activities; that is why a contractor hires employees. Indeed, a contractor may choose to perform those activities only through the employees that it hires without performing any physical work itself.

When the events described by the above words in the statute are read together with the words “for compensation” or “with the intent to sell,” they describe in their entirety how the legislature intended to define the word “contractor.” Both events contemplated by the definition of “contractor” (the offer and acceptance to perform the work as a nonemployee and the performance of the work itself) must exist before a person is deemed a “contractor” under ORS 701.005(2) and before the conclusive presumption is triggered under ORS 656.027(7)(b). To read out of the definition of “contractor” the words, “arranges,” “undertakes,” “offers,” or “submits a bid” is impermissibly to merge the distinction between an independent contractor and an employee that the legislature obviously intended when it promulgated the workers’ compensation law and other statutes. See, e.g., ORS 670.600(6).

In this case, Ocean View Construction (Ocean View) refused claimant’s offer to work as a contractor for it, or, in *162the language of ORS 701.005(2), Ocean View rejected claimant’s offer to arrange, undertake, or submit a bid to do the work. Rather, it expressly hired him as an employee. Thus, the initial event contemplated by the statute never occurred, making the conclusive presumption relied on by the dissent inapplicable.

The flaw in the dissent is its failure to perceive that the definition of “contractor” in the statute contemplates two discrete events. Apparently focusing on the word “or” in the statute, it says that any of the actions that form the act (arranging, or undertaking or submitting a bid to do the work) are “by definition the work of a contractor” and, because “claimant undertook to do construction work for compensation,” that “makes him a contractor under ORS 701.005(2).” 196 Or App at 168 (Wollheim, J., dissenting). But the effect of the dissent’s interpretation is to eliminate the part of the statute that distinguishes an independent contractor from an employee. Thus, the dissent’s interpretation results in a violation of the legislature’s admonishment that we are to give effect to all parts of a statute. See ORS 174.010.

We made the above point clear in Little Donkey Enterprises, Inc. v. SAIF, 118 Or App 54, 58, 845 P2d 1298, modified on other grounds on recons, 121 Or App 643, 856 P2d 323 (1993), in which we held that a person may function simultaneously as the sole proprietor of one business (an independent contractor) and as an employee of another business for purposes of the workers’ compensation law. The dissent pushes aside our decision in Little Donkey Enterprises, Inc., asserting that the legislature’s subsequent adoption of the conclusive presumption in ORS 656.027(7)(b) legislatively overruled our reasoning. But there is nothing in the language of that statute that prohibits a “contractor” from wearing the hat of an employee when not working as a contractor because such a person is not performing the activities of a contractor merely by performing the physical work of the job. The conclusive presumption in the statute applies only if the person is involved in all of the activities for which a license is necessary, i.e., the arranging, offering to undertake, or bidding of a job. Here, claimant was not required by the law to have a contractor’s license in order to do the physical work assigned to him by Ocean View. Given that reality and *163that claimant’s condition arises out of a work-related injury, I concur with the majority’s result.

Brewer, C. J., joins in this concurrence.