City of Grants Pass v. Hamelin

• Decision Date: 02 May 2007
• Docket Number: 0405396; A129285.
• Citation: 212 Or. App. 414,157 P.3d 1206
• Parties: In the Matter of the Compensation of Deborah L. Hamelin, Claimant. CITY OF GRANTS PASS, Petitioner, v. Deborah L. HAMELIN, Respondent.
• Court: Oregon Court of Appeals

157 P.3d 1206

212 Or. App. 414

In the Matter of the Compensation of Deborah L. Hamelin, Claimant CITY OF GRANTS PASS, Petitioner, v. Deborah L. HAMELIN, Respondent.

0405396; A129285.

Court of Appeals of Oregon.

Argued and Submitted October 5, 2006.

Decided May 2, 2007.

David L. Johnstone, Portland, argued the cause for petitioner. With him on the briefs was VavRosky MacColl Olson P.C.

James O. Marsh, Portland, argued the cause for respondent. With him on the brief was Carney, Buckley, Hays & Marsh.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DEITS, Judge pro tempore.

ARMSTRONG, J.

Employer seeks judicial review of an order of the Workers' Compensation Board holding that it must pay compensation for conditions that it mistakenly accepted in an updated notice of acceptance issued at the time of claim closure. The facts are undisputed. We review the board's order for errors of law and affirm.

In 2003, employer was directed by an administrative law judge (ALJ) to accept claimant's "undefined" bilateral upper extremity condition, and thereafter, in April and November 2003, it accepted bilateral wrist tendinitis. In June 2004, employer denied claimant's request for acceptance of additional conditions:

"At this point, our investigations suggests that you do not have the asserted conditions (thumb extensor tendinitis, DeQuervain's Disease, or myofascial pain syndrome of the upper extremities). We also cannot confirm, if you do, in fact have any or all of those conditions, that they are compensably related to your accepted claim of 7/1/01. For the foregoing reasons, we must respectfully deny the compensability of those conditions."

On July 6, 2004, employer issued an "Updated Notice of Acceptance at Closure," stating, "This letter is to notify you we have accepted your claim as disabling for the following condition(s): thumb extensor tendinitis, DeQuervain's disease, myofascial pain syndrome." The parties have stipulated that the July 6 notice was issued by mistake and represents a scrivener's error and not a "considered retraction" of the prior denial of the listed conditions. On July 22, 2004, employer issued a second "Updated Notice of Acceptance at Closure," notifying claimant that "we have accepted your claim as disabling for the following condition(s): bilateral wrist tendinitis." The July 22 notice stated that the July 6 notice "is withdrawn in its entirety and is replaced by this closure." The award stated in the July 6 notice was unchanged, however, and was limited to disability for the left and right wrists. Claimant requested reconsideration, contending that employer was bound by the July 6 notice of acceptance. Employer asserted that it may rescind its erroneous updated notice of acceptance. The board held that employer was bound by its July 6, 2004, acceptance, determining, in essence, that an updated notice of acceptance is a full acceptance, subject to the same procedures and limitations applicable to all notices of acceptance, including the restrictions stated in ORS 656.262(6)(a) on revocation of acceptance.

The first question that we address is whether an updated notice of acceptance issued pursuant to ORS 656.262(7)(c) is an "acceptance" within the meaning of ORS 656.262(6)(a), subject to the limitations for revocation stated in that paragraph. ORS 656.262(6)(a) states the requirements for the issuance of a notice of acceptance of a claim and provides, in part:

"Written notice of acceptance or denial of the claim shall be furnished to the claimant by the insurer or self-insured employer within 60 days after the employer has notice or knowledge of the claim. Once the claim is accepted, the insurer or self-insured employer shall not revoke acceptance except as provided in this section. The insurer or self-insured employer may revoke acceptance and issue a denial at any time when the denial is for fraud, misrepresentation or other illegal activity by the worker. * * * If the insurer or self-insured employer accepts a claim in good faith, in a case not involving fraud, misrepresentation or other illegal activity by the worker, and later obtains evidence that the claim is not compensable or evidence that the insurer or self-insured employer is not responsible for the claim, the insurer or self-insured employer may revoke the claim acceptance and issue a formal notice of claim denial, if such revocation of acceptance and denial is issued no later than two years after the date of the initial acceptance."

When a claim has been accepted pursuant to ORS 656.262(6)(a), there are only two grounds on which it may be revoked: (1) fraud, misrepresentation, or other illegal activity by the worker; and (2) later-obtained evidence showing that the claim is not compensable or is not the responsibility of the accepting insurer. Employer concedes that this case does not present circumstances that authorize a revocation of acceptance under ORS 656.262(6)(a).

When a claim qualifies for claim closure, ORS 656.262(7)(c) states the requirement for the issuance of an updated notice of acceptance:

"When an insurer or self-insured employer determines that the claim qualifies for claim closure, the insurer or self-insured employer shall issue at claim closure an updated notice of acceptance that specifies which conditions are compensable. The procedures specified in subsection (6)(d) of this section apply to this notice. Any objection to the updated notice or appeal of denied conditions shall not delay claim closure pursuant to ORS 656.268. If a condition is found compensable after claim closure, the insurer or self-insured employer shall reopen the claim for processing regarding that condition."

Employer's July 6 and July 22 updated notices of acceptance were purportedly issued pursuant to that provision. In employer's view, notices issued pursuant to ORS 656.262(7)(c) are not acceptances of a claim under ORS 656.262(6)(a); rather, they are simply status reports concerning what conditions have been accepted at the time of closure. As such, employer contends, an updated notice of acceptance issued pursuant to ORS 656.262(7)(c) does not have the same effect or consequence and is not subject to the same limitations for revocation as a notice of acceptance issued pursuant to ORS 656.262(6)(a). Claimant contends that the board correctly concluded that an updated notice of acceptance under ORS 656.262(7)(c) is an acceptance, subject to the same procedures and limitations applicable to all notices of acceptance, including the restrictions stated in ORS 656.262(6)(a) on revocation of acceptance.

We agree with claimant that an updated notice of acceptance is just that—a notice of acceptance. What distinguishes it from an initial...