Background
Bradley Kastner served as a firefighter for the City of Hillsboro, Oregon from 1978 until his retirement in 2010. After retiring, he continued working for the city under a series of written contracts, providing fire and emergency medical training to city employees through 2020. Each contract designated him as an “independent contractor,” specified the particular class to be taught, and stated that he would supply the curriculum and materials — though in practice the city furnished the equipment and training materials, which Kastner adjusted as he saw fit.
In 2023, Kastner filed a workers’ compensation claim seeking compensability for myeloma — a cancer linked to firefighting — under Oregon’s firefighter presumption statute, ORS 656.802(5)(b), which presumes that myeloma results from employment as a firefighter. To invoke the presumption, however, a claimant must have been an employee within the 84 months preceding the claim. ORS 656.802(5)(e). The Workers’ Compensation Board denied the claim, finding that Kastner was an independent contractor during the relevant period and therefore ineligible for the presumption. Kastner sought judicial review in the Court of Appeals.
The Court’s Holding
The Court of Appeals affirmed the Board’s denial, holding that substantial evidence supported the conclusion that Kastner was an independent contractor — not an employee — during the 84 months prior to his claim. The court analyzed the two contested elements of the independent-contractor test under ORS 670.600(2): whether Kastner was free from the city’s direction and control over the means and manner of his services, and whether he was customarily engaged in an independently established business.
On the right-to-control element, the court found that the city controlled only the desired result — trained employees — rather than the means and manner of Kastner’s performance. Three of the four principal control factors (method of payment, right to fire, and direct evidence of control) were either inconclusive or favored independent contractor status; only the furnishing of equipment weighed in favor of employment. On the independently established business element, at least three of the five statutory factors were met: Kastner maintained a business location for his LLC, bore the risk of loss through his indemnification obligations and business insurance, and provided training services to entities beyond the city. Because three factors sufficed under ORS 670.600(3) and ACN Opportunity, LLC v. Employment Dept., 362 Or 824 (2018), the Board’s conclusion was compelled. The contractual designation of Kastner as an independent contractor, while not controlling, also weighed in the balance.
Key Takeaways
- A retired firefighter who returns to work for a former employer under contracts labeling him an independent contractor is not automatically entitled to the firefighter’s cancer presumption — employment status during the 84-month lookback period must be affirmatively established.
- Under Oregon’s right-to-control analysis, supplying equipment to a contractor favors employee status, but that factor alone will not overcome evidence that the hiring entity controls only the result rather than the means and manner of performance.
- The independently established business test under ORS 670.600(3) is satisfied by any three of five factors; even minimal work for clients other than the primary engager can satisfy the “two or more persons” factor regardless of revenue proportionality.
- This is a nonprecedential memorandum opinion under ORAP 10.30 and may be cited only as provided in that rule.
Why It Matters
This decision illustrates a significant coverage gap that can arise when firefighters retire and transition into consulting or training roles for their former employers. Oregon’s firefighter cancer presumption — designed to ease the burden of proof for first responders who develop occupational cancers — turns on the claimant’s status at the time of the relevant work, not at the time of diagnosis. Post-retirement service arrangements that check the hallmarks of independent contractor status (LLC structure, invoice-based payment, no tax withholding, indemnification requirements, outside clients) can defeat the presumption even when the work itself closely resembles the former employment.
For employers and municipalities, the case affirms the value of consistent independent contractor documentation — including written contracts, separate business entity requirements, and indemnification clauses — in defining the legal relationship with post-retirement service providers. For labor and claimants’ counsel, it signals that courts will look past the practical realities of equipment-sharing and curriculum control if the other indicia of independent contractor status are adequately documented.