Filed: April 11, 2002

RAUL M. RUBALCABA,

Petitioner on Review,

v.

NAGAKI FARMS, INC.
and PAULA INSURANCE COMPANY,

Respondents on Review.

On review from the Court of Appeals.*

Argued and submitted November 5, 2001.

D. Michael Dale, Legal Aid Services of Oregon, Portland, argued the cause for petitioner on review. With him on the briefs was Diane Schwartz.

David Levine, Sheridan, Bronstein & Levine, Lake Oswego, argued the cause for respondents on review. With him on the briefs was Richard D. Barber, Jr.

Lynn-Marie Crider, Salem, filed the brief for amici curiae Oregon AFL-CIO, National Employment Law Project, and the Farmworker Justice Fund. With her on the brief were Rebecca Smith, Catherine K. Ruckelshaus, and Bruce Goldstein.

Before Carson, Chief Justice, and Gillette, Durham, Leeson, Riggs, and De Muniz Justices.

LEESON, J.

The decision of the Court of Appeals is reversed. The order of the Workers' Compensation Board is reversed, and the case is remanded to the Workers' Compensation Board for further proceedings.

*Judicial Review from the Workers' Compensation Board. 170 Or App 791, 14 P3d 103 (2000).

Balmer, J., did not participate in the consideration or decision of this case.

LEESON, J.

The issue in this case is whether claimant is a "worker" for purposes of workers' compensation coverage. The Workers' Compensation Board (board) held that claimant was not a "worker" and that, accordingly, he was not entitled to workers' compensation benefits for injuries that he had suffered while working at employer's farm. The Court of Appeals affirmed. Rubalcaba v. Nagaki Farms, Inc., 170 Or App 791, 14 P3d 103 (2000). For the reasons that follow, we reverse the decision of the Court of Appeals and the order of the board.

Claimant was a harvest truck driver. He filed a claim for workers' compensation benefits after severely injuring his arm while working at employer's farm. Employer's insurer denied the claim on the ground that claimant was not a "worker" under the workers' compensation statutes. Claimant requested a hearing, and the administrative law judge (ALJ) made the following findings of fact, which the board adopted in its order:

"The alleged employer (hereinafter "employer") is a farmer. He raises wheat, onions, potatoes, and beets. He engages the assistance of persons with trucks during the harvest season to haul vegetables to the appropriate processor as the crops are harvested.

"In 1998 the employer told a man (a Mr. Hernandez) who had been hauling for him several years how many haulers he needed for the harvest. Hernandez contacted claimant, apparently among others, and indicated that there was an opportunity to haul vegetables for the employer. Claimant did not speak directly to the employer regarding his being hired.

"Claimant owns his own truck. He maintains it and buys the gas and insurance for it.

"The employer directed claimant and the other haulers to the field that was being harvested and indicated where to take the produce. He also advised them as to the hours of the harvesting since the haulers followed the harvesting equipment. Some days the employer gave this information directly to the haulers. Other days the employer gave Hernandez the information and he conveyed it to the haulers.

"Each hauler waited his turn in line and then moved into position to receive produce in his truck from the harvesting crew. The hauler then drove his truck to the processor and returned to the site of the harvest to get in line again.

"In 1998, when the onions were completed at the employer's farm, claimant spent one day hauling for another farm.

"The employer's harvest season generally lasted about six weeks, from early September to mid October. The haulers were paid per load or per ton and received payment at the end of the season. Claimant received only one check from the employer. Claimant was not identified on the books of the employer as an employee. Following 1998, the employer provided claimant with a Form 1099 indicating that claimant had received miscellaneous income from the employer.

"On October 9, 1998, while claimant had his truck on the employer's land, he adjusted a belt in the truck that caused produce to flow from the truck out to the appropriate depository. Claimant's shirttail became caught in the truck's belt. He attempted to free his shirt and used his right hand to do so. His arm became involved with the belt in such a manner that it was severely injured and part of the arm was amputated."

The ALJ also found that, "[p]er his testimony, the employer had the right to discharge claimant."

The question before the ALJ was whether, on those facts, claimant is a "worker" and, therefore, was entitled to workers' compensation benefits for his injury. ORS 656.005(30) defines "worker" as "any person * * * who engages to furnish services for a remuneration, subject to the direction and control of an employer." (Emphasis added.)

The ALJ, concluded that claimant was a worker and that he was entitled to compensation for his injuries. On review, the board reversed. It held that factors relevant to the right to control test (1) conclusively established that claimant was not a "worker" for purposes of workers' compensation coverage. Accordingly, it refused to consider factors relevant to the nature of the work test. (2) As noted, the Court of Appeals affirmed.

Before this court, claimant first argues that, under this court's decisions in Bowser v. State Indus. Accident Comm., 182 Or 42, 185 P2d 891 (1947), and Woody v. Waibel, 276 Or 189, 554 P2d 492 (1976), both of which involved the determination of worker status on facts that were similar to this case, he is a "worker" within the meaning of ORS 656.005(30). Employer responds that the board correctly applied the right to control test and that, as a factual matter, employer had no right to control claimant. Moreover, employer contends, the board correctly refused to consider factors relevant to the nature of the work test.

Before turning to the first question, namely, whether claimant is a "worker" under ORS 656.005(30), we first address this court's standard of review. The board's determination that claimant is not a "worker" within the meaning of ORS 656.005(30) is a conclusion of law, not a finding of fact. See Woody, 276 Or at 192-93 n 3 (question of employee or independent contractor status under workers' compensation statutes is one of law). In this case, the facts are undisputed. We accept, as do the parties, the board's factual findings and review the board's legal conclusion for error of law. See ORS 656.298(7) (providing that review of board order shall be as provided in ORS 183.482); ORS 183.482(8)(a) (providing for review for errors of law).

We turn to the merits. In this case, the board determined claimant's employment status as though it were writing on a clean slate. That is, the board applied the factors germane to the right to control test as though this court had not provided any guidance in its case law regarding the meaning of the statutory phrase "subject to the direction and control of an employer" in analogous situations. However, Bowser and Woody interpreted the statutory definition of "worker" in factual settings that are almost identical to this case. The board's analysis should have considered those interpretations, because, as we discuss below, they are dispositive.

In Bowser, the issue was whether a truck driver who used his own truck to haul logs from a loading point to a saw-mill was a "workman" within the meaning of OCLA