Drews v. EBI Companies

• Jurisdiction: Oregon
• Parties: In the Matter of the Compensation of Walter F. Drews II, Claimant. Walter F. DREWS II, Petitioner, v. EBI COMPANIES and Unity Construction, Respondents. WCB 85-12763; CA A43657.
• Citation: 96 Or.App. 1,771 P.2d 285
• Court: Oregon Court of Appeals
• Decision Date: 26 May 1989

Page 285

771 P.2d 285

96 Or.App. 1

In the Matter of the Compensation of Walter F. Drews II, ClaimantWalter F. DREWS II, Petitioner, v.EBI COMPANIES and Unity Construction, Respondents.

WCB 85-12763; CA A43657.

Court of Appeals of Oregon.

Argued and Submitted March 4, 1988.

Decided April 5, 1989.

Reconsideration Denied May 26, 1989.

James L. Edmunson, Eugene, argued the cause for petitioner.On the brief was Cash R. Perrine, Bend.

Craig A. Staples, Portland, argued the cause for respondents.With him on the brief was Roberts, Reinisch & Klor, P.C., Portland.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.RICHARDSON, Presiding Judge.

Claimant seeks review of an order of the Workers' Compensation Board that affirmed and adopted the referee's order on reconsideration.The referee and the Board held that claimant was barred by res judicata from challenging the amount of temporary total disability benefits.We reverse.

Claimant sustained a compensable injury in 1980 while working for Unity Construction, which was insured by EBI.Unity's owner reported claimant's wage as $8.50 per hour, and EBI paid temporary total disability benefits based on that wage rate.A determination order of September, 1981, awarded temporary total disability but no permanent disability benefits and closed the claim.In December, 1983, claimant requested a hearing on matters arising subsequent to the determination order.The hearing was held on June 13, 1984.There were several issues addressed at the hearing, but neither party discussed or raised any question about the wage rate base for temporary total disability.The claim was again closed by a determination order awarding temporary total disability and permanent partial disability.

In mid-1985, claimant discovered that the owner of Unity had incorrectly reported his wage rate on the original injury claim form.The correct rate was $10.50 per hour.That was later verified and reported by employer in an affidavit by the owner.

Claimant's counsel sent a letter to EBI regarding the mistake.The record is not clear when EBI received the information and whether it took any action in response to it.A hearing on other matters regarding the claim was scheduled for March 19, 1986, and claimant amended his hearing request to raise the issue of EBI's failure to correct the temporary total disability rate within fourteen days and sought penalties and attorney fees.The referee found that there was no evidence that EBI had corrected the mistake and awarded penalties and attorney fees, because EBI had not responded within a reasonable time.

EBI moved for reconsideration on the ground that claimant was barred by res judicata.The referee agreed.In her order on reconsideration she said:

"The evidence in this record indicates that the claimant's wage rate was in error on the 801.Time loss was paid in 1980 and the claim closed by a Determination Order in September 1981.If the rate was improper from the very beginning, it could have been corrected in the 1984 hearing.

" * * * [T]he incorrect wage rate was an issue which could have been raised in the prior hearing and, since it was not, it was then waived."

In North Clackamas School Dist. v. White, 305 Or. 48, 750 P.2d 485, modified305 Or. 468, 752 P.2d 1210(1988), the court discussed the rules of res judicata in workers' compensation cases.The principles are applicable in workers' compensation proceedings "where they facilitate prompt, orderly and fair problem resolution."305 Or....