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Odighizuwa v. Odighizuwa3/18/1992
COURT OF APPEALS OF OREGON
CA No. A68812
1992.OR.41977 ; 828 P.2d 468; 112 Or. App. 159
Decided: March 18, 1992.
IN THE MATTER OF THE COMPENSATION OF PETER O. ODIGHIZUWA, CLAIMANT. TRI-MET, INC., PETITIONER,
v.
PETER O. ODIGHIZUWA, RESPONDENT
Judicial Review from Workers' Compensation Board. Nos. 89-11253, 89-11254.
Jerald P. Keene, Portland, argued the cause for petitioner. With him on the brief was Roberts, Reinisch, Mackenzie, Healey & Wilson, P.C., Portland.
Karen Stolzberg, Portland, argued the cause for respondent. With her on the brief was Goldberg & Mechanic, Portland.
Warren, Presiding Judge, and Riggs and Edmonds, Judges.
Edmonds
Employer seeks review of an order of the Workers' Compensation Board awarding claimant a penalty and attorney fees for an unreasonable denial. ORS 656.262(10); ORS 656.382(1). It argues that the Board erred as a matter of law. We reverse.
Claimant, a bus driver, sustained injuries in a collision between the bus that he was driving and a car driven by another employee of employer that was chasing the bus. There are conflicting eyewitness accounts of the events preceding the collision. Employer argued that, before the collision occurred, claimant had been relieved of his duties as a result of a conflict with another employee and had been directed not to drive the bus to the bus barn. Claimant argued that he was acting within the scope of his employment when the collision occurred. Employer denied compensability on the basis of the version of its witnesses. The referee found claimant credible and set aside the denial. Employer sought review, and claimant requested penalties and attorney fees for an unreasonable denial.
The Board affirmed the order setting aside the denial and held that employer's denial was unreasonable. It said:
"The standard for determining an unreasonable denial is whether the employer had a legitimate doubt as to its liability. Unreasonableness and 'legitimate doubt' are to be considered in light of all the evidence available to the employer at the time. * * *
"* * *
"Here, the employer knew that claimant's bus had been involved in an accident with another of the employer's vehicles. Moreover, the employer was aware that claimant had suffered an injury as a result of the accident. Inasmuch as the employer had knowledge of the accident, it had no basis for questioning the compensability of the injury.
"Accordingly, we conclude that at the time the employer issued its denial, the medical and legal information available to it did not raise a legitimate doubt as to the compensability of claimant's right knee, right hip, and low back injury. Therefore, we find that the issuance of the denial was unreasonable. Penalties and related attorney fees will be assessed. ORS 656.262(10); 656.382(1)." (Citations omitted.)
On reconsideration, the Board adhered to its order with this clarification:
"The gist of this case is that under claimant's version of the events in question, he sustained a compensable injury; under his supervisors' version of the events in question, the injury is not compensable. The Referee, in his order, acknowledged that the case had to be resolved based on credibility. He specifically found claimant credible based on claimant's demeanor. In contrast, he found the
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