In re Comp. of Castle
| Decision Date | 13 November 2015 |
| Docket Number | WCB Case No. 15-00228 |
| Citation | 67 Van Natta 2055 |
| Parties | In the Matter of the Compensation of STANLEY T. CASTLE, Claimant |
| Court | Oregon Workers' Compensation Division |
67 Van Natta 2055
In the Matter of the Compensation of STANLEY T. CASTLE, Claimant
WCB Case No. 15-00228
Oregon Workers' Compensation Division
November 13, 2015
ORDER ON REVIEW
Moore Jensen, Claimant Attorneys
SAIF Legal Salem, Defense Attorneys
Reviewing Panel: Members Johnson and Weddell.
Claimant requests review of that portion of Administrative Law Judge (ALJ) Naugle's order that declined to award penalties and attorney fees for the SAIF Corporation's allegedly unreasonable termination of claimant's temporary total disability (TTD) benefits. On review, the issues are penalties and attorney fees. We reverse.
We adopt the ALJ's "Findings of Fact," and summarize the relevant facts as follows.
Claimant had been working for the employer as a general laborer at a job site for about two weeks before he injured his knee in a work-related incident on August 19, 2014. (Tr. 5). He had never worked for the employer before and, at the time of hire, moving to different job sites was not discussed. (Id.) Before his injury, claimant worked at the same job site for the entire time he worked for the employer. (Id.)
On September 17, 2014, SAIF accepted a disabling right knee strain. (Ex. 5).
On October 17, 2014, Dr. Macha, claimant's treating surgeon, released claimant to modified duty. (Ex. 8).
On December 19, 2014, the employer offered modified duty at a location that the parties stipulated was more than 50 miles from claimant's home and job site at the time of injury. (Ex. 13).
Claimant did not accept the modified job offer, and SAIF stopped paying TTD benefits effective December 22, 2014. Claimant requested a hearing.
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Finding that the requirements for terminating TTD benefits under OAR 436-060-0030(5)(c)(F)(i) were not satisfied, the ALJ concluded that SAIF improperly terminated claimant's TTD benefits. In declining to assess a penalty against SAIF, the ALJ found that SAIF did not act unreasonably based on ambiguity in the language of the rule.
On review, claimant argues that the text of the rule is unambiguous and that SAIF acted unreasonably in terminating his TTD benefits. We agree with claimant's contentions.
Under ORS 656.262(11)(a), if a carrier unreasonably delays or refuses to pay compensation, the carrier shall be liable for an additional amount up to 25 percent of the amounts then due plus any attorney fees assessed under that section. The standard for determining an unreasonable resistance to the payment of compensation is whether, from a legal standpoint, the carrier had a legitimate doubt as to its liability. Int'l Paper Co. v. Huntley, 106 Or App 107, 110 (1991). If so, the delay or refusal to pay is not unreasonable. "Unreasonableness" and "legitimate doubt" are to be considered in the light of all the evidence available to the carrier. Brown v. Argonaut Ins., 93 Or App 588, 591 (1988); Sally J. Mays, 56 Van Natta 3775, 3776 (2004).
SAIF argued at hearing that OAR 436-060-0030(5)(c)(F)(i) was ambiguous as to whether the employment pattern should be evaluated as related to the employer (based on its general practice) or the worker. On review, SAIF additionally asserts that because the rule specifically lists "construction workers" among examples of jobs involving multiple or mobile work sites, and claimant was a construction laborer, its termination of TTD benefits was reasonable. For the following reasons, we conclude that SAIF did not have a legitimate doubt regarding its termination of TTD benefits.
First, we find no ambiguity regarding the "employment pattern" to be analyzed in either the rule or the controlling statute. ORS 656.268(4)(c)(B) allows a worker to refuse an offer of modified employment without the termination of TTD benefits if the offer "is at a work site more than 50 miles one way from where the worker was injured unless the site is less than 50 miles from the worker's residence or the intent of the parties at the time of hire or as established by the pattern of employment prior to the injury was that the employer had multiple or mobile work sites and the...
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