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In re Compensation of French-Davis2/5/2003
Argued and submitted October 11, 2002.
Reversed and remanded.
The Workers' Compensation Board board dismissed claimant's request for a hearing to challenge insurer's failure to close her claim. The board ruled that the request was untimely. Claimant seeks judicial review. Because the parties do not dispute the facts, we review only for legal error. ORS 656.298(7); ORS 183.482(8)(a). We reverse.
Claimant suffered a work-related knee injury in 1991. Her employer's insurer (insurer) accepted the injury as a disabling contusion. After surgery, claimant developed low back pain, assertedly because the knee injury and treatment for it caused her to alter her gait. Insurer's consulting physician, however, could find no diagnosable low back condition so, in February 1994, insurer issued a notice of closure awarding permanent partial disability based solely on the knee injury.
Claimant's back pain continued. In May 1995, she and insurer entered into a stipulation by which insurer agreed to accept the back injury and process it under the workers' compensation statutes. After a 31-month delay, the cause of which does not appear in the record, insurer in December 1997 issued a formal notice of claim acceptance that included both the knee and back injuries. However, insurer thereafter took no further action. In particular, it did not reevaluate claimant's earlier acceptance to include the back injury and then reclose the claim on those broadened terms.
On October 26, 1998, claimant made a settlement offer and, in the alternative, requested "that the lumbar strain condition be processed to closure at the earliest convenient opportunity." Insurer did not respond and more time passed. On April 10, 2000, claimant again submitted to insurer a settlement offer and, alternatively, "a request to rate impairment and close the claim." Insurer again failed to respond, and, on June 13, 2000, claimant requested a hearing to challenge that failure.
The administrative law judge (ALJ) identified two issues at the hearing: first, whether employer had an obligation to reopen the claim in response to the newly accepted back condition; and second, if so, whether claimant timely made her request for a hearing to contest insurer's failure to perform that obligation. The first issue depended on whether acceptance of the claim occurred when insurer entered into the stipulation with claimant in May 1995, in which case insurer had no obligation to reopen the claim because the statute requiring that action, ORS 656.262(7)(c), was not yet in effect; or if it occurred when insurer issued a formal notice of acceptance of the back condition, which occurred 31 months later, after the statute took effect. The ALJ held that insurer accepted the new condition at the time of the stipulation, before the statute took effect, so reopening was not required. The ALJ therefore had no occasion to decide whether claimant had timely requested a hearing to challenge insurer's failure to reopen.
Claimant appealed to the board, which concluded, contrary to the ALJ's opinion, that acceptance occurred only with the formal action by insurer, by which time the statute was in effect and insurer did have an obligation to reopen the claim. The board therefore had to decide whether claimant had timely requested a hearing to challenge insurer's inaction. Insurer maintained that the request was not timely because the triggering date for the two-year limitation period began when insurer formally accepted the post-closure condition in December 1997 and the request occurred in June 2000. Claimant argued that the triggering event was insurer's failure to respond to claimant's requests for closure i
Page 1 2 3 4 Oregon Personal Injury Attorneys
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