Cayton v. Safelite Glass Corp.

• Decision Date: 16 December 2009
• Docket Number: A134878.,0502541.,0503208.
• Citation: 222 P.3d 1134,232 Or. App. 454
• Parties: In the Matter of the Compensation of Anthony D. Cayton, Claimant. Anthony D. CAYTON, Petitioner, v. SAFELITE GLASS CORPORATION, Respondent.
• Court: Oregon Court of Appeals

222 P.3d 1134

232 Or. App. 454

In the Matter of the Compensation of Anthony D. Cayton, Claimant Anthony D. CAYTON, Petitioner, v. SAFELITE GLASS CORPORATION, Respondent.

0502541.

0503208.

A134878.

Court of Appeals of Oregon.

Argued and Submitted June 3, 2009.

Decided December 16, 2009.

Ronald A. Fontana, Portland, argued the cause for petitioner. With him on the briefs was Fontana & Takaro, P.C.

Benjamin Debney argued the cause for respondent. On the brief was Steven T. Maher.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and SERCOMBE, Judge.

EDMONDS, P.J.

Claimant seeks review of an order of the Workers' Compensation Board (board), challenging the board's determinations that (1) he is not entitled to multiple penalties under ORS 656.268(5)(d) for employer's multiple refusals to close his claim and (2) he is not eligible for a separate penalty and/or attorney fees under ORS 656.262(11)(a) and ORS 656.382(1) for refusal to close his claim. We reverse and remand for further consideration.

Between January 2005 and December 2005, claimant may have made as many as 11 requests to employer for closure¹ of his workers' compensation claim pursuant to ORS 656.268(5)(b).² Employer failed to respond to some of the requests and responded to others with a Notice of Refusal to Close. Claimant requested a hearing each time. However, the hearings were postponed and eventually consolidated into one hearing. When a hearing did occur before an administrative law judge (ALJ), claimant requested that multiple penalties be assessed against employer for its refusal to respond to his requests for closures as well as for its refusals to close. Although the ALJ did not attempt to evaluate each request for closure and each refusal to close, he concluded that the failure to close the claim over a 10-month period was unreasonable. Nonetheless, he ruled that claimant was entitled to only one penalty pursuant to ORS 656.268(5)(d)³ and one award of attorney fees pursuant to ORS 656.382(1).

Both parties appealed to the board. The board agreed with the ALJ that employer had unreasonably refused to close the claim but also ruled that claimant was not entitled to multiple awards of penalties and attorney fees. It reasoned, in part, with respect to ORS 656.268(5)(d), that

"there has not been a final litigation order directing the carrier's compliance with claim processing requirements. Rather, claimant has requested multiple penalties for the employer's failure to respond to his various requests to close the claim. However, these multiple penalty requests are based on the same conduct, i.e., the employer's unreasonable refusal to close the claim. Thus, we conclude that multiple penalties under ORS 656.268(5)(d) are not warranted."

Thus, it appears that the board also did not evaluate each request for closure and each refusal to close separately.

On review, claimant argues that the board erred. He explains that "[t]he Board failed to separately analyze each request for closure and the employer's response or lack thereof to determine whether in each instance there was a refusal and whether the refusal was unreasonable." Employer responds that in Red Robin International v. Dombrosky, 207 Or.App. 476, 142 P.3d 493 (2006), we "expressly addressed the issue presented here" when we held that ORS 656.268(5)(d) "does not provide for a penalty for the failure to issue either type of notice." Red Robin, 207 Or.App. at 480-81, 142 P.3d 493. In sum, employer asserts that claimant's argument is the same argument that we rejected in Red Robin.

In Red Robin, the employer sought review of an order of the board, contending that it erred in assessing a penalty under ORS 656.268(5)(d). The claimant had requested a closure on July 29, 2004, and the employer received the request on August 2, 2004. The employer did not issue a notice of closure or notice of refusal to close the claim within 10 days of the claimant's request as required by ORS 656.268(5)(b). Rather, the employer responded with a letter dated August 18, 2004, asserting that an independent medical evaluation would be required before the claim could close. The claimant then requested a hearing and sought the imposition of a penalty pursuant to ORS 656.268(5)(d). The ALJ determined that the employer's failure to comply with the time requirements of ORS 656.268(5)(b) was unreasonable and assessed a penalty under ORS 656.268(5)(d). The board affirmed the ALJ's determination without discussion. Red Robin, 207 Or.App. at 478-80, 142 P.3d 493.

On judicial review, we reversed and remanded for reconsideration. We explained,

"The question presented by this case is whether employer's `affirmative inaction' in failing timely to respond to claimant's request for notice of closure by issuing either a notice of closure or of refusal to close results in a penalty under ORS 656.268(5)(d). ORS 656.268(5)(d) provides that, if the employer has closed the claim or refused to close the claim, a penalty shall be assessed `if the correctness of that notice of closure or refusal to close is at issue in a hearing on the claim and if the finding is made at the hearing that the notice of closure or refusal to close was not reasonable.' The provision assumes that a notice of closure or refusal to close the claim has been issued. The penalty is implicated by an unreasonable closure or unreasonable refusal to close the claim. ORS 656.268(5)(d) does not provide for a penalty for the failure to issue either type of notice. Thus, we agree with employer that the board erred in assessing a penalty based on the failure to timely comply with ORS 656.268(5)(b). If the failure to timely comply with ORS 656.268(5)(b) can give rise to a penalty under ORS 656.268(5)(d), it is because that conduct constitutes a refusal to close the claim. The board has yet to determine whether employer's failure to either close or refuse to close the claim was a refusal to close the claim. That is a determination for the board to make in the first instance. If the board determines that employer's failure to issue a notice closing or refusing to close the claim was a refusal to close the claim, then the determination whether that conduct was reasonable must be based on a factual inquiry into the reasonableness of employer's refusal to close under the circumstances."

Id. at 480-81, 142 P.3d 493 (omitted).

The question presented in Red Robin was whether the employer's affirmative inaction in failing to timely respond to the claimant's request for notice of closure resulted in a penalty under ORS 656.268(5)(d). In this case, the board appears to have applied the rule of Red Robin and to have found that employer had unreasonably refused to close the claim on multiple occasions. It then held, however, that claimant was not entitled to multiple penalties under ORS 656.268(5)(d) for the reasons expressed above. Thus, contrary to employer's argument, our decision in Red Robin does not govern the issue concerning whether multiple penalties are available.

Rather, claimant's arguments that he is eligible for multiple penalties and attorney fee awards under ORS 656.268(5)(d) and ORS 656.262(11)(a)⁴ present issues of statutory construction. In construing a statute, we first look to the statute's text in context to discern the legislature's intention together with any legislative history that may inform the issue and, if necessary, we apply statutory maxims. State v. Gaines, 346 Or. 160, 171-72, 175, 206 P.3d 1042 (2009). Our research does not reveal any legislative history regarding whether the legislature contemplated that multiple penalties could be imposed for multiple refusals to close a claim arising during the processing of a single claim and the language of the statutes is reasonably susceptible to an interpretation either that only one penalty is available or that multiple penalties are available. Consequently, we turn to the third level of analysis, which requires us to apply statutory maxims. One of those maxims is to consider what we believe the legislature would have decided, had it considered the issue. In that respect, the legislative policy underlying ORS 656.268(5)(d) and ORS 656.262(11)(a) informs the issue.

Our review of the legislative history reveals that, in general, the legislature enacted ORS 656.268(5)(d) and ORS 656.262(11)(a) to provide incentives to insurers to promptly close claims when the claimant's condition was medically stationary. See generally Tape Recording, Senate Labor Committee, H.B. 2900, May 27, 1987, Tape 178 Side A; June 9, 1987, Tape 203, Side B; Tape Recording, Senate Labor and Industries Committee, H.B. 1001, Mar. 11, 1965, Tape B. Accordingly, the legislature imposed three predicates to the assessment of a penalty under ORS 656.268(5)(d). First, there must be a closure of a claim or a refusal to close a claim. Second, the correctness of that action must be at issue in a hearing on the claim. Finally, there must be a finding that the notice of closure or the refusal to close was not reasonable. If those predicates are satisfied, then "a penalty shall be assessed." The focal point of the requirements for the imposition of a penalty then, is "reasonableness."

There is, however, no limitation or restriction in the statute on how many penalties may be assessed during the processing of a claim if the predicates for the assessment of a penalty are satisfied. Additionally, we are mindful of the admonition in ORS 174.010 that we are to construe a statute according to its language and not to insert what has been omitted.

Based on the above considerations, we conclude that, if the legislature had intended a limitation on the number of penalties that could be assessed for multiple refusals to close a claim during the processing of a claim, it would have said so expressly. Rather, the policy underlying the statutes indicates that the legislature intended that each request for closure and each response be assessed...