Dep't of Consumer v. Muliro (In re Comp. of Muliro)

Decision Date16 June 2016
Docket NumberSC S062922,WCB 103496, 1102720,CA A152594
Citation359 Or. 736,380 P.3d 270
CourtOregon Supreme Court
Parties In the Matter of the Compensation of Rebecca M. Muliro, Claimant. Department of Consumer and Business Services, Workers' Compensation Division; and Compro, Inc., Respondents on Review, v. Rebecca M. Muliro, Petitioner on Review, and Liberty Northwest Insurance Corporation; Adams & Gray Home Care—Marquis Home Health; and Assured at Home, Respondents.

R. Adian Martin, Portland, filed the brief for petitioner on review.

Greg Rios, Assistant Attorney General, Salem, filed the brief for respondent on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

En Banc


Under the Workers' Compensation Act, an injured worker with more than one employer may be entitled to receive supplemental temporary disability benefits from the Workers' Benefit Fund, in addition to the disability benefits the worker receives from the employer's insurer. The injured worker cannot qualify “unless the insurer * * * receives,” within 30 days of receipt of an initial claim, “notice that the worker was employed in more than one job” at the time of injury. ORS 656.210(2)(b)(A). The question in this case is whether an injured worker must provide actual notice of the worker's secondary employment in connection with the claims process or whether the employer's preexisting knowledge of that employment may be imputed to the insurer to satisfy the notice requirement of ORS 656.210(2)(b)(A). We hold that the correct interpretation of ORS 656.210(2)(b)(A) requires a claimant to prove that the insurer received actual notice of the claimant's secondary employment within 30 days of the insurer's receipt of the initial claim.


We take the historical facts, which are undisputed, from the findings of the Workers' Compensation Board in its order on review.

While claimant was employed by Adams & Gray Home Care–Marquis Home Health (Adams & Gray) as a certified nursing assistant, she sustained a workplace injury.

At that time, claimant also worked for two other home health employers, and Adams & Gray was aware of that fact. Two coordinators at Adams & Gray responsible for scheduling claimant's work hours, claimant's supervisors, knew of her secondary employment because claimant would at various times let a supervisor know, when asked to handle a placement, that she was already scheduled by another agency.

Claimant promptly sought workers' compensation benefits for her injury. She filed a workers' compensation claim, which Adams & Gray's insurer, Liberty Northwest Insurance Corporation (Liberty), received less than a week later. As part of her claim, claimant filled out and signed several workers' compensation benefits forms that were submitted to Liberty—a Liberty claim form (Form 801) and a Department of Consumer and Business Services (DCBS) “Worker's and Physician's Report for Workers' Compensation Claims” form (Form 827). On each form, there was a box above the signature line labeled either “Check here if you are employed w/more than one employer” or “Check here if you have more than one employer.” Claimant did not check the boxes on those forms that would have indicated that she had more than one employer. Form 801 contained Liberty's mailing address, telephone number, and fax number, and Form 827 provided a telephone number to call in case the claimant did not “know the name and address of the insurer.”

Claimant gave a recorded statement to a claims investigator less than two weeks after she had filed her claim. Claimant told the investigator that Adams & Gray usually gave her 40 hours of work per week. The investigator did not ask claimant whether she had other employers while working for Adams & Gray, and claimant did not volunteer that information. Within 30 days of filing her claim, neither claimant nor Adams & Gray had informed Liberty that claimant had secondary employment, and Liberty was unaware of that fact.

Approximately nine months after her injury, claimant informed Liberty through counsel that she had had multiple employers at the time of her injury and requested supplemental temporary disability benefits. Liberty elected not to process the claim for supplemental disability benefits, so DCBS, through its assigned processing administrator, ComPro, Inc., did so.1 ComPro denied claimant's request on the ground that claimant was ineligible for those benefits because Liberty had not received timely notice of claimant's secondary employment, as required by ORS 656.210(2)(b)(A).

Subsequently, claimant requested a hearing before the board's Hearings Division. Based on Adams & Gray's knowledge of claimant's secondary employment and the reasoning of an earlier board decision, the administrative law judge (ALJ) concluded that Liberty had received timely notice of claimant's secondary employment. The ALJ determined that claimant was eligible for supplemental disability benefits and ordered ComPro to process claimant's claim. DCBS and ComPro sought board review of that decision, and the board affirmed the ALJ's order. The board concluded that “the ‘notice’ requirement of ORS 656.210(2)(b)(A) has been met when the employer receives information regarding secondary employment.”

The board acknowledged that the express language of the statute provides that notice must be received by the “insurer” and that an “employer (unless it is self-insured) has no express statutory obligation to pass information/ knowledge to its insurer or statutory administrator, and no responsibilities under the Director's rules for processing supplemental disability claims.” But, the board stated that it is “well settled that, with respect to the processing of claims, notice provided by a claimant to an insured employer may be imputed to the insurer.” According to the board, even if claimant had the burden to provide notice of secondary employment, [c]laimant did provide the information, albeit to [Adams & Gray],” and the “issue of whether [the required] information should be imputed from [Adams & Gray] to [Liberty] is a matter distinct from the express statutory language.” (Footnote omitted; emphasis in original.) As support, the board cited three Court of Appeals cases “dealing with ‘imputation’ between an employer and its insurer”: Anfilofieff v. SAIF , 52 Or.App. 127, 627 P.2d 1274 (1981) ; Nix v. SAIF , 80 Or.App. 656, 723 P.2d 366, rev. den. , 302 Or. 158, 727 P.2d 128 (1986) ; and SAIF v. Abbott , 103 Or.App. 49, 796 P.2d 378 (1990), modified on recons . , 107 Or.App. 53, 810 P.2d 878 (1991). Underlying the board's decision was its concern that it should not interpret the statutory scheme in a way that “would allow an employer to ify a supplemental disability claim by simply refraining from forwarding otherwise timely received supplemental disability information to its insurer.”

DCBS, with Liberty and Adams & Gray joining, sought judicial review in the Court of Appeals. DCBS argued that, under the express terms of ORS 656.210(2)(b)(A), what a claimant must provide, and the insurer must receive, is “actual notice.” The Court of Appeals agreed that ORS 656.210(2)(b)(A) identifies who must receive notice and makes no provision for any type of notice other than actual notice. DCBS v. Muliro , 267 Or.App. 526, 536, 341 P.3d 131 (2014). The Court of Appeals also noted that the director of DCBS had adopted an agency rule to implement the provisions of ORS 656.210(2)(b) that was consistent with its reading of the statute. That rule, OAR 436–060–0035(6), is not challenged in this case and augments ORS 656.210(2)(b) by expressly stating that the injured worker must provide notice to the insurer. The Court of Appeals determined that Anfilofieff, Nix, and Abbott did not “provide helpful context for an interpretation of the notice requirement in ORS 656.210(2)(b)(A).” Muliro , 267 Or.App. at 535, 341 P.3d 131. Instead, the court considered its reasoning in Valencia v. GEP BTL, LLC , 247 Or.App. 115, 269 P.3d 65 (2011), to be instructive. Relying on that case, the Court of Appeals determined that “an injured worker seeking supplemental disability has the burden of satisfying the requirements of ORS 656.210(2)(b) ; when the worker does not provide the necessary information, the entity responsible for processing the claim is not obligated to independently seek that information out.” Muliro , 267 Or.App. at 536, 341 P.3d 131. As a result, the Court of Appeals rejected claimant's contention that Adams & Gray's knowledge of claimant's secondary employment should be imputed to Liberty.

Claimant petitioned for review in this court, challenging the conclusion that ORS 656.210(2)(b)(A) requires a claimant to provide, and the insurer to receive, actual notice of secondary employment. We allowed review to address the interpretation of ORS 656.210(2)(b)(A).


The issue presented involves statutory construction, which we resolve by applying familiar principles set out in PGE v. Bureau of Labor and Industries , 317 Or. 606, 610–12, 859 P.2d 1143 (1993), and State v. Gaines , 346 Or. 160, 171–72, 206 P.3d 1042 (2009). We attempt to discern the meaning of the statute most likely intended by the legislature that enacted it, examining the text in context, any relevant legislative history, and pertinent rules of interpretation. Gaines , 346 Or. at 171–72, 206 P.3d 1042.

Determining the intended meaning of a statute is a question of law. Bergerson v. Salem–Keizer School District , 341 Or. 401, 411, 144 P.3d 918 (2006). But, depending on the nature of the statutory terms at issue, an administrative agency's construction of a statute nevertheless may be entitled to a measure of deference. See generally Springfield Education Assn. v. School Dist. , 290 Or. 217, 223, 621 P.2d 547 (1980) (summarizing the categorization of statutory terms). Whether the agency's construction is entitled...

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