Colclasure v. Washington County School Dist. No. 48-J

• Decision Date: 02 September 1993
• Citation: 857 P.2d 126,317 Or. 526
• Parties: , 85 Ed. Law Rep. 278 In the Matter of the Compensation of Richard A. Colclasure, Claimant. Richard A. COLCLASURE, Petitioner on Review, v. WASHINGTON COUNTY SCHOOL DIST. NO. 48-J, Respondent on Review. In the Matter of the Compensation of Richard Colclasure, Claimant. Richard COLCLASURE, Petitioner on Review, v. BEAVERTON SCHOOL DIST. NO. 48-J, Respondent on Review. WCB 88-15666, 89-05949; CA A67543 (Control), A67666; SC S39928.
• Court: Oregon Supreme Court

Page 126

857 P.2d 126

317 Or. 526, 85 Ed. Law Rep. 278

In the Matter of the Compensation of Richard A. Colclasure,

Claimant.

Richard A. COLCLASURE, Petitioner on Review, v. WASHINGTON COUNTY SCHOOL DIST. NO. 48-J, Respondent on Review.

In the Matter of the Compensation of Richard Colclasure, Claimant.

Richard COLCLASURE, Petitioner on Review, v. BEAVERTON SCHOOL DIST. NO. 48-J, Respondent on Review.

WCB 88-15666, 89-05949; CA A67543 (Control), A67666; SC S39928.

Supreme Court of Oregon,

In Banc.

Argued and Submitted May 4, 1993.

Decided Sept. 2, 1993.

Merrill Schneider, of Schneider, DeNorch & Galaviz-Stoller, Portland, argued the cause for petitioner on review. Daniel J. DeNorch filed the petition.

Patric J. Doherty, of VavRosky, MacColl, Olson, Doherty & Miller, P.C., Portland, argued the cause for respondents on review. With him on the response was Karli L. Olson.

Kevin Keaney, of Pozzi, Wilson, Atchison, O'Leary & Conboy, Portland, filed an amici curiae brief on behalf of the Oregon Workers' Compensation Attys. and Oregon Trial Lawyers Ass'n.

FADELEY, Justice.

In this workers' compensation case, the dispositive issue is the proper scope for a hearing referee's review of an order of the director of the Department of Insurance and Finance under ORS 656.283(2). ¹

Claimant suffered a work-related back injury in 1982. The claim was closed in 1984 with an award of unscheduled permanent disability. Claimant returned to his usual work with the employer. After experiencing intermittent back problems at work and consulting both his treating physician and a psychiatrist, claimant filed a claim for aggravation of his back injury on February 9, 1987. One month later, claimant asserted a new issue, that he suffered from a psychological stress condition arising from his original 1982 back injury. The employer initially reopened the claim, but then issued a denial on May 26, 1987, denying both the injury aggravation claim and any responsibility for the psychological stress condition. Claimant and his employer's insurance carrier entered into a stipulation and disputed claim settlement with the employer in 1987. The parties agreed that:

(1) under the heading of "Aggravation of Low Back," claimant should be paid an additional percentage for unscheduled disability for "additional loss of earning capacity," doubling the amount of that disability provided by the 1984 order, and

(2) claimant would be referred for "whatever vocational assistance to which he is administratively entitled."

The parties additionally agreed, under the heading of "Psychological Stress Claim," that claimant's psychological condition was not a compensable consequence of his undisputedly disabling 1982 injury at work.

Lastly, the parties stipulated that claimant would resign his position as a custodian with the employer and expressly agreed that the employer had no suitable work available for claimant. The stipulation explained the reason why the resignation was in order by acknowledging that claimant's "low back condition in conjunction with his psychological stress condition has rendered him physically incapable of performing any type of employment at" the employer's work place. (Emphasis added.)

When claimant later applied for vocational assistance, it was denied on the basis of "ineligibility" by the vocational assistance provider engaged by the employer. Denial was stated to be on the ground that claimant left work for reasons unrelated to his compensable injury. The denial of eligibility was based on a contact between Columbia Rehabilitation Consultants, the rehabilitation provider hired by claimant's employer, and a member of the director's staff assigned to the Rehabilitation Review section of the Department of Insurance and Finance. The service provider reported on January 21, 1988, in a letter to claimant and the employer's agent:

"I staffed your file with the Rehab Review Section. They informed me that the Stipulation signed on 12/15/87 is not sufficient to provide vocational assistance as there was no accepted aggravation reopening your claim."

That legal conclusion--that there was no cognizable aggravation--arrived at between the private rehabilitation consultants and the state agency, became the dispositive determination in the later stages of administrative consideration of claimant's eligibility for vocational rehabilitation assistance. There is no other record of the discussion between the two or of what facts, if any, were considered by them in arriving at that dispositive conclusion.

Following denial of vocational assistance on grounds of ineligibility based on the "no aggravation" conclusion, claimant sought review by the director under ORS 656.283(2). After negotiations, the department issued a "Letter of Agreement" based on contacts with representatives of both parties, stating in part as follows:

"ISSUES

"Whether [claimant] is eligible for vocational assistance.

"Whether the Stipulation/Disputed Claims Settlement and Order of Dismissal, dated December 15, 1987, intended to acknowledge that [claimant] sustained an accepted aggravation to his low back on February 9, 1987.

"AGREEMENTS

"Both the insurer's attorney and worker's attorney agree that the above stipulation intended that a dry aggravation was to be accepted, and vocational eligibility would be determined.

"[Claimant] will be referred to Columbia Rehabilitation for eligibility determination only. If it is determined that [claimant] is eligible for vocational services, a mutually agreed upon vocational rehabilitation organization will be decided upon.

"If any party disagrees with any of the statements in this agreement, please contact me by March 16 to advise of corrections." (Emphasis added.)

That letter served as the department's initial ruling on the claimant's request for review.

The service provider again denied that claimant was eligible for vocational assistance. Claimant requested review of that eligibility decision by the director pursuant to ORS 656.283(1) and (2). The director again ruled that claimant was ineligible for consideration for vocational assistance, stating that claimant "left this job in February 1987, not because of any physical difficulties in performing his job duties, but because of psychological stress," a noncompensable condition. The director recognized that the parties may have had a different intention than his ruling. He stated: "While the intent of the parties to the December 15, 1987, Stipulation and Order may have been to recognize * * * aggravation of [claimant's] back injury," that did not matter. The director explained:

"[I]n the absence of a reopening of [claimant's] back injury claim and evidence that he stopped working because of a worsening of his back condition, there is no causal link between the injury and the need for vocational assistance. What the parties intended in this regard, therefore, has no bearing on the issue of vocational assistance."

In arriving at that conclusion, the director developed no evidentiary record and held no evidentiary hearing. Dissatisfied, claimant requested further review before a hearing referee, pursuant to ORS 656.283(1) and (3).

The referee found that claimant left work for a good reason, one related to the disability from his compensable injury, and, thus, that claimant was eligible for vocational services. The employer then appealed to the Workers' Compensation Board on the ground that, under ORS 656.283(2), the referee could not find facts different from those on which the director could have based his action, whether or not the director's version of the facts was found in the administrative record or was based on evidence in that record at the time of the director's decision. The Board--apparently deciding to apply to its review, by analogy, the standard applicable to judicial reviews of agency determinations that are based upon a full record and findings of fact made under procedures that comport with due process--agreed with the employer. A majority of the Board held that the referee was not permitted to find facts in relation to a review to determine eligibility for vocational assistance. ² The Court of Appeals affirmed. Colclasure v. Wash. County School Dist. No. 48-J, 117 Or.App. 128, 843 P.2d 953 (1992).

The statute authorizing both hearings before referees and reviews of the director's vocational assistance decisions is ORS 656.283, which provides in part:

"(1) Subject to subsection (2) of this section and ORS 656.319, any party or the director may at any time request a hearing on any question concerning a claim.

"(2) If a worker is dissatisfied with an action of the insurer or self-insured employer regarding vocational assistance, the worker must first apply to the director for administrative review of the matter before requesting a hearing on that matter. Such application must be made not later than the 60th day after the date the worker was notified of the action. The director shall complete the review within a reasonable time, unless the worker's dissatisfaction is otherwise resolved. The decision of the director may be modified only if it:

"(a) Violates a statute or rule;

"(b) Exceeds the statutory authority of the agency;

"(c) Was made upon unlawful procedure; or

"(d) Was characterized by abuse of discretion or clearly unwarranted exercise of discretion."

The legal issue to be resolved in this case is whether a referee has authority, when reviewing a vocational assistance decision of the director under ORS 656.283(2), to find facts independently before exercising his or her power. In answering that question, we follow the usual trail: We first examine the text and context of the pertinent statute, then, if the text and context are ambiguous, look to legislative history and, if those avenues of inquiry do not answer the question, we look to other aids. Bartz v. State of Oregon, 314 Or. 353, 357-58, 839 P.2d 217 (1992).

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