Fields v. Workmen's Compensation Bd.

• Decision Date: 02 August 1976
• Parties: Eugene FIELDS, Appellant, v. WORKMEN'S COMPENSATION BOARD, State of Oregon, Respondent.
• Court: Oregon Court of Appeals

Page 834

552 P.2d 834

26 Or.App. 323

Eugene FIELDS, Appellant, v. WORKMEN'S COMPENSATION BOARD, State of Oregon, Respondent.

Court of Appeals of Oregon.

Argued and Submitted June 21, 1976.

Decided Aug. 2, 1976.

C. H. Seagraves, Jr., Grants Pass, argued the cause for appellant. With him on the brief were Myrick, Coulter, Seagraves & Nealy, Grants Pass.

Kevin L. Mannix, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and FORT, J.

FORT, Judge.

This case, which turns on the construction of ORS 656.278(1), a workmen's compensation statute, has an involved procedural history. Claimant's request for compensation for a heart attack was rejected by the administrator, the referee and the Workmen's Compensation Board. He failed to perfect his appeal from the board to circuit court. On two different occasions 14 months and 22 months after the board's order, he asked the board to reconsider his claim on its own motion under ORS 656.278(1), which gives to board continuing jurisdiction to modify its former orders or awarded on its own motion. The first time, the board said it was uncertain whether it had jurisdiction but said that it would not change its order if it did. The second time, the board determined that it did not have jurisdiction under ORS 656.278(1) to reconsider claims which had been denied and had become final. Claimant brought a declaratory judgment action in circuit court to challenge this interpretation of the 'own motion' statute. On the basis of the record and oral argument, the court determined that the statute did not give claimant a right to a hearing, decided that it should not assume jurisdiction, and dismissed the proceeding with prejudice.

In his first assignment of error claimant contends that a declaratory judgment action is an appropriate way to challenge an administrative agency's interpretation of a jurisdictional statute. The state concedes the correctness of the procedure. Union Pac. R.R. Co. v. Bean, 167 Or. 535, 119 P.2d 575 (1941). We know of no other pending litigation nor of any public policy or other reason why a declaratory judgment should not be given in this case. Nelson v. Knight, 254 Or. 370, 371--72, 460 P.2d 355 (1969); Campbell v. Henderson, 241 Or. 75, 79--80, 403 P.2d 902 (1965). We conclude that the circuit court did have jurisdiction to issue a declaratory judgment. ORS 28.010, 28.120.

The primary issue here is whether the continuing jurisdiction provided for in ORS 656.278(1) extends to claims which have been rejected, or whether it is limited to claims which were initially determined to be compensable. ORS 656.278 provides as follows:

'(1) The power and jurisdiction of the board shall be continuing, and it may, upon its own motion, from time to time modify, change or terminate former findings, orders or awards if in its opinion such action is justified.

'(2) An order or award made by the board during the time within which the claimant has the right to request a hearing on aggravation under ORS 656.273 is not an order or award, as the case may be, made by the board on its own motion.

'(3) The claimant has no right to a hearing, review or appeal on any order or award made by the board on its own motion, except when the order diminishes or terminates a former award or terminates medical or hospital care. The employer may request a hearing on an order which increases the award or grants additional medical or hospital care to the claimant.'

The board based its determination on the phrase 'continuing jurisdiction,' reasoning that its power could continue only in a claim which it had determined to have arisen in the course of employment. A rejection of such a claim terminated the board's jurisdiction. Claimant contends that the legislature did not intend to so limit the board's jurisdiction. ¹ The state concedes that the statute is ambiguous. An agency's interpretation of an ambiguous law which it administers is entitled to 'careful consideration' by this court. Gouge v. David, 185 Or. 437, 454, 202 P.2d 489 (1949).

There is no recent legislative history to aid in construing ORS 656.278(1). The board was first granted continuing jurisdiction to change former findings or orders in 1917. General Laws of Oregon 1917, ch. 288, § 13, p. 559. In 1925 the statute was modified so that continuing jurisdiction was on the board's own motion only. General Laws of Oregon 1925, ch. 133, § 5, p. 200. Only the appeal provisions have been changed significantly since then. See: Verban v. State Ind. Acc. Com., 168 Or. 394, 401--04, 123 P.2d 988 (1942). No significant changes have occurred since Verban.

The 1925 provision was codified as part of the statute relating to claims for aggravation of prior injuries. 3 Oregon Code Annotated, § 49--1836(c). In the current code ORS 656.278 follows directly after the aggravation claim statute, ORS 656.273. The location of the continuing jurisdiction statute in conjunction with the aggravation statute and the provision in ORS 656.278(2) that the board's actions will not be deemed to be pursuant to its own motion jurisdiction until after the end of the period (five years) during which workmen can file claims for aggravation indicate a legislative intent that the purpose of the board's own motion jurisdiction is to allow it to modify previous awards in cases that have been open for over five years. There is no indication that it is intended to allow the board to reopen claims that were rejected.

Our attention has been directed to no Oregon cases determining this particular question, nor have we found any. Cases considering ORS 656.278(1) on other questions, however, have assumed that the statute was designed to allow the board to modify former awards in cases in which compensation has been granted. Holmes v. State Ind. Acc. Com., 227 Or. 562, 362 P.2d 371, 363 P.2d 563 (1961); Hoffmeister v. State I.A. Com., 176 Or. 216, 223--24, 156 P.2d 834 (1945); Verban v. State Ind. Acc. Com., supra; Bowser v. Evans Products Co., 17 Or.App. 542, 546, n. 2, 522 P.2d 1405, Rev'd on other grounds 270 Or. 841, 530 P.2d 44 (1974); Powell v. Wilson, 10 Or.App. 613, 617--19, 501 P.2d 338 (1972).

ORS ch. 656 provides that after an initial denial by the administrator, a claimant may have a hearing before a referee and three levels of de novo review of the referee's decision, with a possibility of discretionary review by the Supreme Court. Claimant's construction of ORS 656.278(1) would allow an additional method of seeking review of a denied claim. We think it is unlikely that the legislature intended to extend the review process.

ORS 656.295(8) and 656.298(7) require that an appeal to the circuit court must be taken within 30 days of the mailing of the board's order and that workmen's compensation appeals be given precedence on the circuit court docket. Claimant's construction of ORS 656.278(1) would allow the possibility of review without time limit, contrary to the legislative provisions for expediting a final decision.

Oregon cases require that initial issues of compensability not be argued under the guise of aggravation claims. Dodd v. Ind. Acc. Com., 211 Or. 99, 107, 310 P.2d 324, 311 P.2d 458, 315 P.2d 138 (1957); Dinnocenzo v. SAIF, 18 Or.App. 63, 69, 523 P.2d 1280 (1974); Bowser v. Evans Products Co., supra, 17 Or.App. at 545, 522 P.2d 1405. These cases reflect a policy of confining the issue of compensability to the initial proceedings provided by statute. The board's interpretation of its continuing jurisdiction is in accord with this policy.

We hold that the board is correct in its interpretation that ORS 656.278(1) allows it continuing jurisdiction only in cases which have been determined to be compensable.

Remanded for entry of judgment consistent with this opinion.

SCHWAB, Chief Judge (dissenting).

I find no basis in the statutes, the case law or the majority's analysis for concluding that the Workmen's Compensation Board lacks jurisdiction to ever reconsider, under its discretionary own-motion jurisdiction, a claim that was initially determined to be noncompensable. I would hold that such jurisdiction exists.

The controlling statute, ORS 656.278(1), provides:

'The power and jurisdiction of the board shall be continuing, and it may, upon its own motion, from time to time modify, Change or terminate former findings, Orders or awards if in its opinion such action is justified.' (Emphasis supplied.)

This creates the Board's own-motion jurisdiction as to 'former findings, orders or awards.' ¹ The legislature...