Hamilton v. Pac. Skyline, Inc.
| Decision Date | 29 October 2014 |
| Docket Number | A154725.,1201235 |
| Citation | 266 Or.App. 676,338 P.3d 791 |
| Parties | Carl W. HAMILTON, Petitioner, v. PACIFIC SKYLINE, INC., Respondent. |
| Court | Oregon Court of Appeals |
Ronald A. Fontana, Portland, argued the cause and filed the briefs for petitioner.
Howard R. Nielson argued the cause for respondent. On the brief were Karen S. Varney and Radler, Bohy, Replogle & Conratt, LLP.
Before DUNCAN, Presiding Judge, and LAGESEN, Judge, and DE MUNIZ, Senior Judge.
Claimant petitions for review of orders of the Workers' Compensation Board (board).1 In those orders, the board (1) reversed an administrative law judge's (ALJ's) determination that claimant was not entitled to temporary disability benefits for the period of time after claimant's self-insured employer disapproved claimant's attending physician, and awarded temporary disability benefits to claimant for that time period; and (2) concluded that, notwithstanding the fact that claimant's employer had erroneously concluded that claimant was not entitled to temporary disability benefits for the time period at issue, claimant was not entitled to penalties and attorney fees under ORS 656.262(11)(a) because, under the circumstances, the employer's failure to pay the benefits owed was not unreasonable. Claimant assigns error to the board's determination that he was not entitled to penalties and attorney fees under ORS 656.262(11)(a). He argues, in part, that the board's determination is not supported by substantial reason. We agree. We therefore reverse and remand to the board to supply the reasoning for its determination. See Drew v. PSRB, 322 Or. 491, 500–01, 909 P.2d 1211 (1996) ().
Claimant does not assign error to the board's findings of historical fact. Accordingly, we draw the facts underlying this case from the board's orders, and from the factual findings of the ALJ adopted by the board. Meltebeke v. Bureau of Labor and Industries, 322 Or. 132, 134, 903 P.2d 351 (1995).
Claimant injured his left knee in 2008 while working for employer as a truck driver. Employer eventually accepted claimant's workers' compensation claim for a number of left knee conditions. Claimant began treatment for his knee conditions with Dr. Baltins, an orthopedic surgeon, in December 2008, beginning a sequence of surgeries and physical therapy that spanned several years. Baltins's chart notes throughout that period indicate that claimant was disabled, and do not indicate an ending date for that disability. Although employer did not receive those chart notes until April 23, 2012, a November 1, 2011, note by employer's claim examiner reflects that, as of that date, Baltins had found that claimant remained disabled and required additional physical therapy.
In connection with claimant's disability, employer continuously paid total temporary disability benefits until February 26, 2012. On February 22, 2012, employer discontinued its approval of Baltins as claimant's attending physician. Thereafter, on March 9, 2012, employer alerted claimant that claimant's temporary disability benefits had ended as of February 25, 2012, because, at that point, Baltins was no longer authorized to be claimant's attending physician, and claimant had not obtained a new attending physician. Claimant requested a hearing before an ALJ on the termination of his temporary disability benefits. In the interim period before the scheduled hearing date in June, employer paid claimant temporary disability benefits for the period of February 27, 2012 through April 29, 2012, and for the period between April 30, 2012 and May 13, 2012. Employer made the first payment on April 16, 2012, and the second payment on May 15, 2012.
On April 26, 2012, the Workers' Compensation Division of the Department of Consumer and Business Services (WCD) upheld employer's disapproval of Baltins as claimant's attending physician.
Claimant's hearing was held as scheduled in June. Following the hearing, the ALJ issued an order concluding that claimant was not entitled to temporary disability benefits after the date on which Baltins had been disapproved as claimant's attending physician. The ALJ reasoned that, because claimant had no attending physician after that date, there was no authorization from an attending physician for temporary disability benefits in effect for that period. Accordingly, the ALJ concluded that, under ORS 656.262(4)(g), benefits were not owed because the statute specifies that “[t]emporary disability compensation is not due and payable * * * after the worker's attending physician * * * ceases to authorize temporary disability or for any period of time not authorized by the attending physician.” ORS 656.262(4)(g).
Claimant sought review before the board. On review, the board reversed and awarded claimant temporary disability benefits for the period in question, concluding that Baltins's authorization of disability was open-ended and, therefore, remained effective notwithstanding his discontinuation as claimant's attending physician; one board member concurred in the decision on the ground that
Although the board awarded claimant temporary disability benefits for the period at issue, the board denied claimant's request for attorney fees and penalties under ORS 656.262(11)(a), which mandates an award of fees and penalties “[i]f the insurer or self-insured employer unreasonably delays or unreasonably refuses to pay compensation.” The board stated that employer's refusals and delays in paying temporary disability benefits to claimant for the periods after February 26, 2012, were not unreasonable because the record did not show that the board had received Baltins's open-ended disability authorization until April 23, 2012, after it had reinstated claimant's benefits retroactively. The board also stated that employer's refusals and delays were not unreasonable because “the WCD had affirmed the employer's disapproval of Dr. Baltins as claimant's attending physician.”
Claimant requested reconsideration of the board's denial of fees and penalties. On reconsideration, claimant pointed out that the employer's records contained the November 1, 2011, claim examiner note stating that Baltins had found that claimant remained disabled and required more physical therapy, indicating that employer was aware of Baltins's open-ended authorization of disability. The board acknowledged the notation, but adhered to its prior determination that employer had not acted unreasonably. The board stated that, notwithstanding the notation, absent written verification from Baltins, which employer did not receive until April 23, 2012, employer had a legitimate doubt about its obligation to pay temporary disability compensation for the period in question. The board further stated that, “when a carrier acts in accordance with a validly enacted rule or statute (even though it does not expressly rely on that particular point or authority), such an action can be justified.” The board also reiterated that, with respect to employer's late payment of benefits for the time period between April 30, 2012 and May 13, 2012, the fact that WCD had affirmed employer's disapproval of Baltins on April 26, 2012, gave employer a legitimate doubt about whether benefits were owed for that period.
Claimant timely petitioned for review of the board's orders. On review, claimant asserts, among other things, that the board's determination that claimant is not entitled to attorney fees and penalties under ORS 656.262(11...
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