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Gonzalez v. Schrock Cabinet Company5/31/2000
En Banc
Judicial Review from Department of Consumer and Business Services.
Argued and submitted September 10, 1998; resubmitted en banc October 13, 1999.
Affirmed.
Edmonds, J., concurring.
Landau, J., dissenting.
DE MUNIZ, P. J.
Employer petitions for review of an order of the Director of the Department of Consumer and Business Services (Director) finding that claimant is eligible for vocational assistance benefits. We affirm.
The parties' dispute involves the 1995 enactment of Senate Bill 369, which divested the Workers' Compensation Board of jurisdiction for vocational assistance matters and vested that jurisdiction in the Director. Under the procedure established by the legislation, the initial decision on a vocational assistance dispute is made by the Rehabilitation Review Unit (RRU), as the Director's designee. A party that is dissatisfied with the order must request a contested case hearing before the Director within 60 days. A final order from the contested case hearing is subject to appellate review under ORS 183.482. The changes became effective on June 7, 1995. The bill's provisions for retroactive application made the new legislation applicable to unresolved claims. Volk v. America West Airlines, 135 Or App 565, 568, 899 P2d 746 (1995), rev den 322 Or 645 (1996).
To accomplish an orderly processing of cases under the new legislation, the Director adopted temporary OAR 436-001-0015 (1995), which provided:
"(1)(a) Any appropriate request for review that was filed with the board or its Hearings Division (the board) before June 7, 1995, where review now lies with the director, will be considered a timely filing with the director provided that:
"(A) the review request filed with the board was timely and consistent with prevailing Oregon law as it existed on the date of such filing; and,
"(B) the requesting party formally files for review in writing with the director within 90 days of the effective date of this rule.
" (b) On or after June 7, 1995 and before September 17, 1995, any appropriate request for review filed with the Board or its Hearings Division (the board) on a matter where review now lies with the director * * * shall be deemed a timely filing with the director provided that:
"(A) the review request made with the board was within the time lines to file with the director as set forth under the new law; and,
"(B) the requesting party formally files for review in writing with the director within 90 days of the effective date of this rule.
"* * * * *
"(e) * * * hese provisions provide a temporary grace period during which a timely filing with the Board will be deemed a filing with the director."
We turn to the case before us. Claimant sustained a compensable back injury in 1993, which resulted in permanent impairment to his low back. He was released to light work, and, in March 1994, employer offered claimant a position as a paint room associate, employer's "only open position." Claimant accepted the offer and began work. However, the position required constant standing and walking, and claimant suffered leg pain while performing the job duties. When he advised his supervisor that he needed to sit down for a few minutes to control his pain, the supervisor sent him home. This occurred on several occasions, and claimant finally stopped returning to work. His employment was terminated, and claimant applied for vocational assistance. On August 2, the RRU issued an order determining that claimant was not eligible for vocational assistance, and claiman
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