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Applicant injured during driving test not entitled to comp

driving test

A job applicant who was injured while performing a driving test is not entitled to workers compensation, the Supreme Court of Oregon held Thursday.

A six-judge panel Oregon overturned an appellate court decision, finding that the state’s Workers Compensation Board did not err in holding that the man did not qualify as a worker at the time of injury In the Matter of Compensation of Gadalean.

In May 2014, Cozmin Gadalean responded to a job advertisement for a truck driver position. He was interviewed for the position and scheduled to take a mandatory U.S. Department of Transportation preemployment driving test on June 4, 2014.

During his test, while disconnecting hoses from the trailer at a designated delivery location, he fell four or five feet from the truck from the ground, landing on his hip. His was unable to drive the truck after his injury, and one of the company’s drivers, who was along for the test, drove to the next stop before returning to the employer’s premises. He was not invited back to finish the driving test and did not receive any written offer of employment.

After the injury, Mr. Gadalean sought medical treatment and was diagnosed with a left hip strain. He filed an injury claim with SAIF Corp., the state’s nonprofit workers comp provider, and said he did not know whether the June 4 drive was considered a training day or a preemployment evaluation day, but admitted that he had not received any written offer of employment or filled out an employment tax form. SAIF denied compensability of the claim, which an administrative law judge and the board affirmed on the basis that Mr. Gadalean had not met the definition of a worker at the time of the injury.

Mr. Gadalean filed a petition for review in the Oregon Court of Appeals, contending that the board should have looked beyond the workers compensation statutes to the minimum wage law to determine the applicability of benefits. The appellate court reversed the board’s decision, concluding that Mr. Gadalean had qualified as a worker at the time of his injury because he had been “put to work” and was therefore entitled to receive the minimum wage for the delivery he made. SAIF petitioned for review, and the Oregon Supreme Court reversed the appellate court decision, affirming the decision of the board that Mr. Gadalean was not a worker at the time of his injury.

The appellate court disagreed that minimum wage law can convert a claimant into a worker under Oregon statutes, and agreed that Mr. Gadalean’s proposed application of the minimum wage statute would improperly substitute the definition of “employ” under minimum wage law for the Legislature’s chosen definition of “worker” in workers compensation.

The court noted that the Legislature’s definition of “employ” under workers comp requires evidence of the elements of a contract as well as a right to control. The court agreed with the board’s assertion that Mr. Gadalean had a possibility of employment depending on whether he passed the safe driving test, which he did not, and had been told by the prospective employer that he was to perform the test without renumeration, and therefore did not qualify as a worker under Oregon Workers Compensation Law.

A SAIF spokesperson wrote in an email that the company appreciates the court’s clarification of the definition of “worker” under Oregon workers comp law.

“The court issued a clear, reasoned decision that found a person on a job interview — even if the interview includes a driving test or other activity that could be construed as “work” — is not a “worker” for purposes of Oregon workers compensation unless they have a reasonable expectation of being paid,” he said.

The attorney for Mr. Gadalean did not immediately respond to requests for comment.




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