In re Comp. of Swint
| Decision Date | 03 April 2018 |
| Docket Number | WCB Case No. 17-01519 |
| Citation | 70 Van Natta 451 |
| Parties | In the Matter of the Compensation of JUSTIN A. SWINT, Claimant |
| Court | Oregon Workers' Compensation Division |
ORDER ON REVIEW
Moore & Jensen, Claimant Attorneys
Richard J Cantwell, Defense Attorneys
Reviewing Panel: Members Curey and Lanning.
The self-insured employer requests review of those portions Administrative Law Judge (ALJ) Kekauoha's order that: (1) found that claimant's hearing request concerning its calculation of the rate of his temporary disability benefits was not untimely filed under ORS 656.319(6); (2) directed it to recalculate claimant's temporary disability rate; and (3) awarded a penalty and $2,500 penalty-related attorney fee for allegedly unreasonable claim processing. On review, the issues are timeliness of claimant's hearing request, temporary disability rate, penalties, and attorney fees. We vacate the ALJ's order and dismiss claimant's hearing request.
We adopt the ALJ's "Findings of Fact," which we summarize as follows.
On September 18, 2014, claimant, a police officer, suffered a compensable injury to his left lower extremity. (Exs. 2-4). On September 26, 2014, he was released to light duty and subsequently returned to modified work. (Exs. 10, 11).
On October 8, 2014, the claim administrator sent a Notice of Wage Calculation letter to claimant, advising him that his temporary total disability (TTD) rate was calculated as $830.43, based on an average weekly wage (AWW) of $1,245.59, but that the employer had elected to provide "wage continuation" in lieu of paying temporary disability benefits.1 The notice explained that the AWW/TTDinformation was being provided because any work disability award, if determined to be due at the time of closure, would be based upon that wage calculation. The notice further advised that if claimant disagreed with the wage calculation, he must immediately notify the claim administrator of his disagreement. (Ex. 14).
Subsequently, in lieu of temporary disability benefit payments, the employer continued to pay claimant his regular base pay plus incentives (e.g., contributions to his retirement account and medical and dental insurance) in two-week intervals. (Ex. 6). The first payment was made to him on October 10, 2014, for the period of September 21, 2014 through October 4, 2014. (Ex. 6-1). The payroll information accompanying the check indicates that an hourly rate of $31.14 was used to calculate wages, which was claimant's regular hourly base pay rate. (Id.)
Wage-continuation payments continued to be paid every two weeks until February 28, 2017, when claimant was released to regular work without restrictions. (Exs. 6, 54).
On April 7, 2017, claimant requested a hearing to challenge the employer's processing of his temporary disability benefits. In response, among other objections, the employer contended that claimant's hearing request was untimely filed under ORS 656.319(6).
The ALJ concluded that claimant's April 7, 2017, hearing request was timely filed under ORS 656.319(6). In doing so, the ALJ reasoned that the employer's October 8, 2014, Notice of Wage Calculation letter was not the claim processing "action" that triggered the two-year period under the statute. Rather, the ALJ concluded that each of the employer's wage-continuation payments that were made in lieu of paying temporary disability benefits were separate processing actions that tolled the statute. Because the employer made wage-continuation payments to claimant until he was released to regular work in February 2017, and claimant filed his hearing request within two years of those payments, the ALJ found the hearing request timely under ORS 656.319(6).
On review, the employer contends that claimant's April 7, 2017, hearing request is untimely. It reasserts its argument that the October 8, 2014, Notice of Wage Calculation letter, explaining that it would provide wage continuation in lieu of temporary disability payments, was the action that triggered the two-year limitation period under ORS 656.319(6). In response, claimant asserts that each wage-continuation payment constituted a separate act of claim processing, such that each payment within two years of the April 7, 2017, hearing request is subject to our review.
Although we disagree with the employer's contention that the Notice of Wage Calculation letter tolled the two-year limitation in ORS 656.319(6), we still conclude that claimant's hearing request was not timely filed. We reason as follows.
ORS 656.319(6) provides: "A hearing for failure to process or an allegation that the claim was processed incorrectly shall not be granted unless the request for hearing is filed within two years after the alleged action or inaction occurred." In applying the statute, we first identify what specific action or inaction amounted to the alleged failure to process or incorrectly process the claim so as to begin the two-year time limitation period under ORS 656.319(6). See French-Davis v. Grand Central Bowl, 186 Or App 280, 284 (2003); Terrizino D. Williams, 58 Van Natta 1487, 1489 (2006). Then, we identify when that action/inaction occurred. Id.
In French-Davis, the carrier accepted a new/omitted medical condition claim in December 1997, but took no further action. On October 26, 1998, the claimant requested that the claim be processed to closure. The carrier did not respond and more time passed. On April 10, 2000, the claimant again requested closure of the claim, and the carrier again failed to respond. On June 13, 2000, the claimant requested a hearing to challenge that failure. 186 Or App at 282. On review, we held that the request was not timely under ORS 656.319(6), because the triggering date for the two-year limitation period began when the carrier formally accepted the post-closure condition in December 1997, which prompted its statutory obligation to reopen the claim for processing, and the request occurred in June 2000. Id. at 284.
On appeal, the court reversed. Finding that the case involved a claim processing "inaction" for purposes of ORS 656.319(6), the court reasoned that "inaction" refers to something that does not occur, and, therefore, lacks a beginning or an end. The court concluded that the purpose of the statute would be frustrated if the two-year period was deemed to be triggered simply by the absence of the required action. Id. at 286. Therefore, the court determined that the "inaction" contemplated by the statute must be an "affirmative inaction," i.e., a failure to perform a time-specific, discrete duty, request, or obligation. Id. at 285. The court concluded that such an action could not be sending an acceptance notice, but, more logically, occurred when the claimant requested claim closure. Id. at 287. Therefore, because the closure request imposed an obligation on the carrier to respond within 10 days by issuing either a notice of closure or refusal to close, as required by ORS 656.268(5)(b), the court concluded that the carrier's failure to perform that obligation constituted the "inaction" that began the two-year period in ORS 656.319(6). Id. Because the claimant's hearing request occurred within two years of that inaction, the court held that the request was timely. Id. at 287-88.
We distinguish French-Davis. Here, claimant is not alleging a failure to process the claim, but rather is alleging that the employer processed the claim incorrectly by not including consideration of overtime in his "same wage" calculation for wage continuation purposes. In other words, the issue in this case is not an alleged failure to process, as was the case in French-Davis, but rather concerns an alleged incorrect claim processing.2 Thus, we are required to determine the date of the alleged "action" (as opposed to "inaction," as was the case in French-Davis) that triggered the two-year period under ORS 656.319(6).
To resolve that question, we find Williams instructive. In Williams, the carrier allegedly did not include supplemental temporary disability benefits in the claimant's temporary disability payment. That alleged shortage first occurred on February 12, 2003, the date temporary disability payments began. Despite the claimant's assertion that he was owed more money (which occurred around the time he received his first check), the alleged underpayment was not corrected. On August 21, 2003, a Notice of Closure awarded temporary disability benefits from January 22, 2003 through July 2, 2003. On February 23, 2005, the claimant requested a hearing challenging the lack of supplemental temporary disability benefits. 58 Van Natta at 1487-88.3
We held that the claimant's request for hearing was untimely under ORS 656.319(6). In doing so, we found that the two-year limitation period under ORS 656.319(6) was triggered by the carrier's February 12, 2003, "action" of not correctly including the claimant's supplemental temporary disability benefits in his temporary disability payment. Id. at 1490. Because that action did not occur within two years of the claimant's February 23, 2005, hearing request, we concluded that the request was time-barred "with respect to the period of temporary disability regarding the initial opening of the claim that commenced on February 2003."4 Id. Of note, temporary disability benefit payments in Williams from February 23, 2003 through July 2, 2003, if considered individually, would have been within two years of the request for hearing. However, our decision did not address each payment, but, as mentioned, focused on the commencement of the incorrect processing as the "action" triggering ORS 656.319(6).5
Applying the Williams rationale to the present case, we do not evaluate each individual wage-continuation payment separately as an "action" under ORS 656.319(6).6 Rather, we conclude that the claim processing "action" that triggeredthe two-year limitation in ORS 656.319(6) occurred on October 10, 2014 (the date of the first...
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