Ashley A. Rehfeld v. Sedgwick Claims Management Services

Claimant was injured while working for Wend

Magazine in part as an unpaid intern and in part on commission.

Because Wend was a noncomplying employer, the

Workers’ Compensation Board reasoned that it could not

determine a weekly wage for claimant, and it therefore

awarded her the statutory minimum temporary disability

benefit of $50 per week. See ORS 656.210 (specifications

for temporary total disability benefits). The board rejected

claimant’s contention that claimant’s benefits should be calculated

based on Oregon’s legal minimum wage. Although

we agree with the board that Oregon’s minimum wage does

not provide the wage on which to base claimant’s benefits

in this case, we nonetheless conclude that the board erred

in awarding weekly benefits of only $50, and we therefore

reverse and remand for reconsideration.

We summarize the relevant facts, which are largely

undisputed, as reflected in the record and as found by the

administrative law judge and adopted by the board. In

July 2008, claimant began working part time as an unpaid

intern for Wend Magazine, a magazine for sports enthusiasts.

1 Claimant’s work at Wend involved graphic design,

selling advertising, and modeling sports clothing for photo

shoots. Wend and claimant agreed that she would be paid a

commission on the sale of advertising but that she would not

be paid for her other work. After working approximately one

month at Wend, claimant was injured on the job when she

fell and broke her wrist while modeling skateboard clothing

for a photo shoot. Claimant’s wrist injury required surgery.

Claimant filed a workers’ compensation claim. A

dispute arose about the amount of compensation to which

claimant was entitled for temporary disability.2 At the time

of her injury, claimant had not finalized any advertising

1 As noted, Wend Magazine was a noncomplying employer; thus, the Director

of the Department of Consumer and Business Services referred the processing of

the claim to Sedgwick CMS, as the assigned claims agent. See ORS 656.054.

2 Sedgwick also disputed claimant’s employment status and the compensability

of the claim. In Sedgwick v. Rehfeld, 255 Or App 512, 298 P3d 68 (2013),

we affirmed without opinion the board’s order determining that claimant was a

subject worker and that the claim was compensable.

Cite as 283 Or App 288 (2017) 291

sales and thus had not earned a commission. The board

found that, although claimant had not received any compensation

for her work at Wend at the time of her injury, she

had an expectation of receiving compensation for advertising

sales.3

Workers’ compensation benefits for temporary disability

are based on the worker’s weekly wage. See ORS

656.210; OAR 436-060-0025(5)(a). Because of Wend’s noncomplying

status, the board reasoned that it was unable to

determine a weekly wage for claimant. In the absence of a

weekly wage, the board determined that claimant was entitled

to the statutory minimum benefit for temporary disability

of $50 per week. See ORS 656.210(1). In rejecting

claimant’s contention that the wage rate on which to base

claimant’s benefits was the statutory minimum wage set

forth in ORS chapter 653, the board explained in an order

on reconsideration that its authority to determine claimant’s

benefits depended on the requirements of ORS chapter 656

and the administrative rules of the Workers’ Compensation

Division of the Department of Consumer and Business

Services, and that the board had no authority to consider

the requirements for payment of the minimum wage.

Claimant challenges that determination on judicial

review, contending that, in the absence of an agreement

between claimant and Wend as to claimant’s wages, she was

entitled to be paid the statutory minimum wage set forth

in ORS chapter 653, and her benefits should be determined

accordingly. Sedgwick responds that the board was correct

in concluding that, as distinct from any entitlement that

claimant might have under ORS chapter 653 to receive a

minimum wage for the work that she performed for Wend,

claimant’s benefits for temporary disability are to be determined

as provided in ORS chapter 656 and OAR 436-060-

0025. Claimant’s petition presents a question of statutory

construction that we review for legal error. Baker v. Liberty

Northwest Ins. Corp., 257 Or App 205, 210, 305 P3d 139,

rev den, 354 Or 597 (2013).

3 Claimant also received the skateboard clothing that she had modeled for

the photo shoot, valued at $300, but there is no contention that the clothing constituted

compensation.

292 Rehfeld v. Sedgwick Claims Management Services

An injured worker is entitled to benefits for temporary

disability under ORS 656.210, which provides, as

relevant:

“(1) When the total disability is only temporary, the

worker shall receive during the period of that total disability

compensation equal to 66- 2/3 percent of wages, but

not more than 133 percent of the average weekly wage nor

less than the amount of 90 percent of wages a week or the

amount of $50 a week, whichever amount is less. * * *

“(2)(a) For the purpose of this section, the weekly wage

of workers shall be ascertained:

“(A) For workers employed in one job at the time

of injury, by multiplying the daily wage the worker was

receiving by the number of days per week that the worker

was regularly employed[.]”4

A worker’s “wage” is “the money rate at which the service

rendered is recompensed under the contract of hiring in

force at the time of the accident.” ORS 656.005(29).5

The department has promulgated OAR 436-060-

0025(5), which describes methods for computing benefits for

workers who, like claimant, are “employed with unscheduled,

irregular or no earnings.” OAR 436-060-0025(5) provides,

as relevant:

“The rate of compensation for workers regularly

employed, but paid on other than a daily or weekly basis, or

employed with unscheduled, irregular or no earnings shall

be computed on the wages determined by this rule.

“* * * * *

“(i) Covered workers with no wage earnings such as

volunteers, jail inmates, etc., must have their benefits computed

on the same assumed wage as that upon which the

employer’s premium is based.

4 The record shows that claimant also worked part time as a server at a

restaurant. We note that, under ORS 656.210(2)(a)(B), the weekly wage of a

worker employed in more than one job at the time of injury is to be determined by

adding all earnings that the worker was receiving from all subject employment,

if the employer receives timely notice and verification of the second employment

as required by ORS 656.210(2)(b).

5 The “average weekly wage” is the Oregon average weekly wage in covered

employment for the last quarter of the calendar year preceding the fiscal year in

which the injury occurred. ORS 656.005(1).

Cite as 283 Or App 288 (2017) 293

“(j) For workers paid by commission only or commission

plus wages insurers must use the worker’s average

commission earnings for previous 52 weeks, if available.

For workers without 52 weeks of earnings, insurers must

use the assumed wage on which premium is based. Any

regular wage in addition to commission must be included

in the wage from which compensation is computed.”

For workers, like claimant, who have no wages, or who are

paid on a commission and have less than 52 weeks of earnings,

benefits must be calculated on “the assumed wage”

on which the employer’s premium is based. OAR 436-060-

0025(5)(i), (j). But the rule does not explicitly apply to claimant’s

circumstance because, as a noncomplying employer,

Wend did not have an “assumed wage” at the time of claimant’s

injury. In the absence of an assumed wage, the board

reasoned that it could not calculate claimant’s wage rate

and that claimant’s weekly wage therefore was zero.

ORS 653.025 specifies the minimum wage that

Oregon employers must pay workers who are subject to that

law. Claimant contends that, in the absence of an assumed

wage on which to base claimant’s benefits, the minimum

wage to which she was legally entitled under ORS 653.025

must apply. Claimant bases her contention on United Airlines

v. Anderson, 207 Or App 493, 498, 142 P3d 508 (2006), in

which we held that a collective bargaining agreement executed

after the claimant’s injury that included a retroactive

wage increase was binding as of the date of the claimant’s

injury and was therefore the “contract of hiring in force at

the time of the accident.” Claimant contends that, analogously,

in the absence of wages, the statutory minimum

wage became the “contract of hiring in force at the time of

the accident,” and that is the wage on which her benefits

must be based. Claimant disputes the board’s rationale that

it lacked the authority to apply the minimum wage, contending

that, ancillary to its authority to determine claimant’s

benefits, the board had authority to determine whether the

minimum wage applied.

We need not decide whether the board was authorized

to address minimum-wage issues in the context of its

determination of claimant’s entitlement to benefits for temporary

disability. That is because we agree with Sedgwick that

294 Rehfeld v. Sedgwick Claims Management Services

there is no textual support, in either ORS chapter 656 or ORS

chapter 653, for claimant’s view that, in the absence of an

agreement by an employer to pay wages, the statutory minimum

wage applies to the determination of a worker’s benefits.

There is no indication in the text or context of the pertinent

statutes or administrative rules that minimum-wage laws

have any bearing on the calculation of a worker’s benefits.

But we nonetheless conclude that the board erred

in applying a temporary disability rate of $50 per week.

As noted, the board reasoned that it could not determine

a weekly wage for claimant because Wend, as a noncomplying

employer, had not paid a premium and therefore

did not have an assumed wage on which its premium was

based. See OAR 436-060-0025(5)(i), (j) (for workers with

no wages, or who are paid on commission with less than

52 weeks of earnings, benefits must be calculated on “the

assumed wage” on which employer’s premium is based.) The

board’s rationale is inconsistent with ORS 656.054(1), which

provides that “[a] compensable injury to a subject worker

while in the employ of a noncomplying employer is compensable

to the same extent as if the employer had complied

with this chapter.” Claimant’s benefits for temporary disability

should not be less than they would have been had

Wend complied with its obligation to provide workers’ compensation

insurance coverage. Had Wend complied with the

workers’ compensation law, claimant’s benefits would have

been calculated under OAR 436-060-0025(5)(i) or (j) using

the “assumed wage” on which Wend’s premium was based.

Under OAR 436-080-0040, in determining the civil penalty

to be assessed against a noncomplying employer, the

Workers’ Compensation Division is required to calculate the

amount of “premium the employer would have paid during

the noncomplying period if insurance had been provided.” In

the absence of insurance premiums actually paid by Wend

at the time of the injury, we conclude that claimant’s benefits

should be calculated based on the assumed wage on

which Wend’s premium would have been based had Wend

provided insurance. We therefore remand the board’s order

for reconsideration of temporary disability benefits.

Reversed and remanded.