Goodwin v. NBC Universal Media - NBC Universal (In re Comp. of Goodwin), A163239
| Decision Date | 10 July 2019 |
| Docket Number | A163239 |
| Citation | 448 P.3d 1168,298 Or.App. 475 |
| Parties | In the MATTER OF the COMPENSATION OF Samuel GOODWIN, II, Claimant. Samuel Goodwin, II, Petitioner, v. NBC Universal Media - NBC Universal, Respondent. |
| Court | Oregon Court of Appeals |
Julene M. Quinn, Albany, argued the cause and filed the briefs for petitioner.
Edward S. McGlone III, Oregon City, argued the cause and filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and Brewer, Senior Judge.
In this workers’ compensation case, claimant assigns error to the Workers’ Compensation Board’s determination that his request for hearing from a denial of his new/omitted medical condition claim was untimely under ORS 656.319, and that the circumstances do not support a determination that claimant had "good cause" for failing to file a request for hearing within 60 days of the mailing of the denial. We review the board’s order for errors of law and substantial evidence, ORS 183.482(8)(a) and (c), conclude for the reasons explained in this opinion that we are unable to review whether the board properly exercised its delegated discretion in determining that claimant did not have good cause, and therefore reverse and remand.
The facts are largely procedural and undisputed, and we draw them from the board’s order and the record. In August 2012, claimant was injured while working for employer NBC Universal as a painter for the set of the television show Grimm, when he fell from the lift gate of a truck and onto his back while holding an air compressor. He reported the injury to employer, and employer’s medic gave him over-the-counter medication and heat packs. Claimant did not file a claim at that time.
Then, on July 24, 2013, claimant was lifting a heavy piece of plywood at work when he felt a snap/pinch in his neck, the immediate onset of pain between his shoulder blades, and numbness in his left arm that extended into his fingers. Claimant sought chiropractic treatment and filed a claim. Claimant had an MRI, which his doctor interpreted to demonstrate disc protrusions at C5-6 and C6-7. Employer accepted a disabling claim for "neck and thoracic sprains
." Employer closed the claim without an award of permanent partial disability, and claimant requested reconsideration of the notice of closure.
In the reconsideration process, claimant did not attend a required medical arbiter examination. The Workers’ Compensation Division of the Department of Business and Consumer Services issued a notice suspending claimant’s benefits and the reconsideration process, as described in ORS 656.325(1)(a). The department ultimately reinitiated the reconsideration process and upheld the notice of closure.
Claimant continued to suffer symptoms. A neurosurgeon ordered a second MRI, which was interpreted to show degenerative disc disease
with disc protrusions accompanied by osteophytes at multiple levels, most prominent at C5-6 and C6-7, for which claimant had surgery.
On August 1, 2014, claimant, through counsel, sought acceptance of a new/omitted medical condition described as "right C6 foramen disc rupture, however termed." AIG, employer’s workers’ compensation processing agent, arranged an independent medical examination of claimant by a neurosurgeon in Portland for September 2, 2014, but claimant had moved to Oklahoma and did not attend. On September 30, 2014, AIG denied the claim, stating that it lacked sufficient information to determine whether the condition was work related. On October 6, 2014, claimant discharged his attorney.
Claimant received AIG’s denial of the new/omitted medical condition claim. The procedures for challenging the denial of a claim are set out in ORS 656.262(9), ORS 656.283, and ORS 656.319(1). ORS 656.283(1) provides that a party "may at any time request a hearing on any matter concerning a claim." ORS 656.283(2) provides:
"A request for hearing may be made by any writing, signed by or on behalf of the party and including the address of the party, requesting the hearing, stating that a hearing is desired, and mailed to the Workers’ Compensation Board."
ORS 656.262(9) provides that, if an employer denies a claim for compensation, then the worker may request a hearing pursuant to ORS 656.319. ORS 656.319(1)(a), in turn, provides that a request for hearing on a denied claim must be filed within 60 days after the mailing of the denial.1
OAR 438-005-0070, the board’s administrative rule implementing ORS 656.283(2), provides:
On November 17, 2014, claimant mailed a certified letter to the Sanctions Unit of the department’s Workers’ Compensation Division. The letter described claimant’s two injuries, his frustrations with his inability to work or to receive further medical treatment, and his disagreement with a doctor’s view that there was a degenerative component to his condition. The letter did not explicitly mention the denial or request a hearing, but concluded with the request, "Can anyone help me with resolving these issues?"
The Sanctions Unit forwarded claimant’s letter to the department’s "Ombudsman for Injured Workers," who acts an advocate for injured workers.2 On December 1, 2014, an ombudsman spoke to claimant and his father by telephone at a number provided in the November 17 letter. The ombudsman confirmed from the conversation that it was claimant’s intention in the letter to request a hearing on the denial of his new/omitted medical condition claim. The ombudsman told claimant that she would deliver the letter to the board, but that claimant should send another letter to the department requesting a hearing. The board found that the ombudsman told claimant that he had 60 days from the date of mailing of the denial within which to challenge the denial. The board further found that the 60th day for requesting a hearing was December 1, the date of the telephone conversation. The board did not find that the ombudsman told claimant that the last day to file the request for hearing was December 1, 2014.
On December 3, 2014, claimant sent a second certified letter to the department, which reached the ombudsman on December 5, 2014. The letter was entitled "Appeal and Object." It stated claimant’s objections to the July 31, 2014, notice of closure and the notice of suspension of benefits, and asked for "help with processes." But once again, the letter made no mention of the denial and did not explicitly request a hearing. On December 5, the ombudsman hand delivered both of claimant’s letters to the board, along with the ombudsman’s own letter explaining her understanding that claimant intended by the letters to contest the denial of the new/omitted condition claim. By that time, the board had in its file a copy of employer’s denial of claimant’s new/ omitted medical condition claim. The department then issued a notice of hearing.
Claimant retained new legal counsel. At the hearing, employer sought to dismiss the request for hearing as untimely. Employer contended that claimant’s November 17 and December 3 letters did not refer to the denial or explicitly request a hearing and, further, that the December 3 letter had been mailed outside of the 60 days.
Claimant and his father testified at the hearing. Their testimony reflects a lack of sophistication and understanding as to the procedural significance of the various notices claimant had received, including the notice of suspension of benefits and the notice of denial, and a lack of understanding of the requirements for requesting a hearing. Claimant has dyslexia
and cannot read or write. Claimant’s father and cousin assisted him with the November 17 and December 3 letters. The administrative law judge (ALJ) found that the November 17 letter met the requirements of a request for hearing under ORS 656.283(2).
The board reversed the ALJ’s order. The board found that claimant had not included a copy of the denial with either the November 17 or December 3 letter, and that that prevented the letters from being "referable" to a particular denial of employer, as required by our opinions in Guerra v. SAIF , 111 Or. App. 579, 826 P.2d 1034 (1992), and Naught v. Gamble, Inc. , 87 Or. App. 145, 149, 741 P.2d 901 (1987). The board therefore concluded that the November 17 and December 3 letters were ineffective as requests for hearing. In an order on reconsideration, the board further determined, without explanation, that, if the letter of December 3 was an effective request for hearing, claimant had not established "good cause" under ORS 656.319(1)(b) for failing to mail it within 60 days of the date of mailing of the denial. Claimant seeks judicial review, challenging both determinations.
Claimant’s first contention is that the two letters constituted requests for hearing under ORS 656.283, because they included all the information required by that statute, viz. , they were in writing, "signed by or on behalf of the party and including the address of the party, requesting the hearing, stating that a hearing is desired." In claimant’s view, his request in the November 17 letter for "help resolving these issues" was unequivocally a request for hearing.
Employer responds that, under Guerra , 111 Or. App. at 584, 826 P.2d 1034, a request for hearing must be referable to a particular denial and that, even assuming that claimant’s letters could be understood to contain ...
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