Olsten Temporary Services Inc. v. Lipton12/12/1990
COURT OF APPEALS OF OREGON
CA No. A60945
1990.OR.40144 ; 802 P.2d 93; 104 Or. App. 565
December 12, 1990
OLSTEN TEMPORARY SERVICES, INC., AND CNA INSURANCE COMPANIES, INC., RESPONDENTS,
v.
REFEREE DAVID LIPTON, APPELLANT
Appeal from Circuit Court, Multnomah County. Mercedes Deiz, Judge. No. A8904-02174.
Susan G. Bischoff, Salem, argued the cause for appellant. With her on the briefs were Joseph D. Robertson and Garrett, Seideman, Hemann, Robertson & De Muniz, P.C., Salem.
Gary G. Norris, McMinnville, argued the cause for respondents. With him on the brief were Jerry K. Brown and Cummins, Brown, Goodman, Fish & Peterson, P.C., McMinnville.
Buttler, Presiding Judge, and Warren and Rossman, Judges.
Buttler
In this mandamus proceeding, defendant, a workers' compensation referee, appeals from the circuit court's judgment and issuance of a peremptory writ ordering him to suspend the hearing rights of a workers' compensation claimant. We reverse, because we conclude that there is no factual predicate for the writ. It should not have been issued.
The claimant sustained a compensable back injury in February, 1987, while employed by plaintiff Olsten Temporary Services, Inc. The claim was closed by a determination order in September, 1987. In April, 1988, the claimant settled an aggravation claim, reserving the right to continue receiving medical benefits for his back injury.
Between the time of the injury and October, 1988, the claimant was examined by four independent medical examiners at plaintiffs' request. On October 27, 1988, the claimant underwent his fifth examination at plaintiffs' request, for the purpose of determining whether he had experienced a worsening of his February, 1987, injury. Shortly thereafter, on the recommendation of his own physician, the claimant had surgery, for which he had not sought plaintiffs' authorization, although plaintiffs were aware that it was to be performed. After the surgery, he filed an aggravation claim, which plaintiffs denied; they also denied responsibility for the surgery. The claimant requested a hearing, which was set for May 3, 1989.
On March 30, 1989, plaintiffs notified the claimant that they had scheduled an independent medical exam for April 12, 1989. By a letter dated April 4, the claimant told plaintiffs that he would not attend the exam. On April 7, plaintiffs filed a motion to suspend the claimant's hearing rights. On April 20, 1989, defendant issued an "interim" order holding that the claimant did not have to submit to the exam and denying the motion.
Plaintiffs petitioned the circuit court for an alternative writ of mandamus, contending that, because the claimant had refused to submit to the independent medical exam, the referee was required by ORS 656.325 to suspend his right to a hearing. After a hearing, the court entered judgment for
plaintiffs and issued the peremptory writ ordering defendant to suspend the claimant's hearing rights.
There are many potential issues raised by this proceeding. They relate chiefly to the availability of mandamus to compel an official to make a decision on a matter that is subject to direct administrative and judicial review. See State ex rel LeVasseur v. Merten, 297 Or 577, 580, 686 P2d 366 (1984); State ex rel Automotive Emporium v. Murchison, 289 Or 265,
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