Opinion
90-11-001; CA A75468
Argued and submitted April 16, 1993
Reversed and remanded in part for reconsideration; otherwise affirmed June 23, 1993 Reconsideration denied September 30, 1993 Petition for review allowed November 16, 1993 ( 318 Or. 60) See later issue Oregon Reports
Judicial Review from Department of Insurance and Finance.
Michael O. Whitty, Special Assistant Attorney General, Salem, argued the cause for petitioner. With him on the brief were Charles S. Crookham, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Peter A. Ozanne, Portland, argued the cause for respondent. With him on the brief were William H. Replogle and Schwabe, Williamson Wyatt, Portland.
Before Rossman, Presiding Judge, and De Muniz and Leeson, Judges.
LEESON, J.
Portion of order relating to audit period from October 3, 1989, to March 31, 1990, reversed and remanded for reconsideration; otherwise affirmed.
SAIF seeks judicial review of an order of the Department of Insurance and Finance (DIF) finding that four horse trainers who provided services to Lake Oswego Hunt, Inc., during the audit period April 1, 1989, through March 31, 1990, were not "workers" under former ORS 656.005 (27) (renumbered ORS 656.005(28) in 1990).
DIF applied the four-factor right to control test of Castle Homes, Inc. v. Whaite, 95 Or. App. 269, 769 P.2d 215 (1989), for the entire audit period, and concluded that, because Lake Oswego Hunt neither controlled nor retained a right to control the manner and method used to train the students or horses, the trainers were not workers and were not subject to workers' compensation premium assessment. That conclusion follows from DIF's findings, which are supported by substantial evidence.
SAIF contends that DIF erred by not also applying the relative nature of the work test. We disagree. The right to control test enabled DIF to resolve the issues in this case. Therefore, it was unnecessary to apply the relative nature of the work test. See Premsingh Assoc. v. Natl. Council on Comp. Ins., 111 Or. App. 624, 627, 826 P.2d 120, rev den 313 Or. 300 (1992).
SAIF also contends that DIF erred by failing to apply former ORS 701.025 (renumbered ORS 670.600 in 1991), which sets the standards for independent contractors, for the period from October 3, 1989, to March 31, 1990. We agree. S-W Floor Cover Shop v. Natl. Council on Comp. Ins., 121 Or. App. 402, 854 P.2d 944 (1993). We remand for application of the standards under former ORS 701.025 for the relevant portion of the audit period.
Portion of order relating to audit period from October 3, 1989, to March 31, 1990, reversed and remanded for reconsideration; otherwise affirmed.