In re Comp. of Morin, WCB Case No. 15-01456

• Decision Date: 03 November 2016
• Docket Number: WCB Case No. 15-01456
• Citation: 68 Van Natta 1760
• Parties: In the Matter of the Compensation of ARMANDO MORIN, Claimant
• Court: Oregon Workers' Compensation Division

68 Van Natta 1760

In the Matter of the Compensation of ARMANDO MORIN, Claimant

WCB Case No. 15-01456

Oregon Workers' Compensation Division

November 3, 2016

ORDER ON REVIEW

Alvey Law Group, Claimant Attorneys

Gress & Clark LLC, Defense Attorneys

Reviewing Panel: Members Johnson and Lanning.

The self-insured employer requests review of Administrative Law Judge (ALJ) Mills's order that: (1) awarded additional temporary disability benefits; (2) assessed penalties and related attorney fees for unreasonable claim processing; and (3) awarded a $7,000 employer-paid attorney fee. On review, the issues are temporary disability, penalties, and attorney fees. We affirm in part and modify in part.

FINDINGS OF FACT

We adopt the ALJ's "Findings of Fact," and provide the following summary.

In December 2011, claimant sustained a work-related third degree right leg burn, which the employer accepted. (Exs. 2, 18). In March 2012, to evaluate claimant's ongoing right leg pain complaints, an MRI was obtained that showed degenerative arthritis and a medial meniscus tear. (Ex. 29).

On April 5, 2012, claimant's attending physician, Dr. Kemalyan, reported that claimant was unable to return to work due to his right knee injury, although he was released to regular work regarding the burn injury. (Exs. 32, 33, 34).

In June 2012, claimant's right knee osteoarthritis and medial meniscus tear was denied. (Ex. 39).

Following a prior ALJ's March 6, 2013 order, the employer accepted right knee osteoarthritis/bone spur and right medial meniscus tear. (Ex. 43). At that time, claimant had not been released to regular work regarding his right knee conditions.

The employer did not pay temporary disability benefits following its acceptance of the right knee osteoarthritis/bone spur and right medial meniscal tear. On April 1, 2015, claimant requested a hearing, seeking temporary disability benefits, penalties, and attorney fees. (Hearing File).

CONCLUSIONS OF LAW AND OPINION

The ALJ found that temporary disability benefits were payable on April 5, 2013, when the prior ALJ's compensability decision became final. Because claimant requested a hearing on April 1, 2015, the ALJ determined that claimant's hearing request was not barred by the two-year time limitation under ORS 656.319(6). Finding that claimant had not been released to work regarding his right knee condition, the ALJ awarded additional temporary disability benefits.

On review, the employer contends that, because OAR 436-060-0150(5)(h) provides that temporary disability payments accruing after an ALJ's order must begin 14 days after the order's issuance, claimant's hearing request (filed on April 1, 2015) was barred under ORS 656.319(6).¹

We conclude that claimant's hearing request is statutorily barred concerning the first 14-day period of temporary disability benefits due following the prior ALJ's March 6, 2013 order. However, insofar as his hearing request pertains to the employer's temporary disability benefit obligations accruing thereafter, and to the employer's obligation to pay retroactive temporary disability benefits, the request was timely. 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."

To determine when the alleged action or inaction occurred, we turn to OAR 436-060-0150(5)(h), which provides the timeframes in which the employer was obligated to pay temporary disability benefits. Specifically, OAR 436-060-0150(5)(h) provides:

"(5) Timely payment of temporary disability benefits means the insurer has made payment no later than the 14th day after:

"* * * * *"(h) The date any litigation authorizing retroactive temporary disability becomes final. Temporary disability accruing from the date of the order must begin no later than the 14th day after the date the order is filed. For the purpose of this rule, the 'date the order is filed' for litigation from the Workers' Compensation Board is the signature date, and from the courts, it is the date of the appellate judgment[.]"

Here, because claimant had not yet been released to work, the prior ALJ's March 6, 2013 order awarded, or "authorized," both retroactive temporary disability benefits and "accruing," or ongoing, temporary disability benefits following the order by determining that claimant's right knee condition was compensable.² "Retroactive" temporary disability benefits (i.e., benefits due before the prior ALJ's March 6, 2013 order) were due on April 19, 2013 (14 days after the ALJ's March 6, 2013 order became final). Thus, insofar as the prior ALJ's order pertains to "retroactive temporary disability," we agree with the ALJ's determination that claimant's April 1, 2015 request for hearing was timely filed. Therefore, as it applies to "retroactive temporary disability," the ALJ's order is affirmed.

We next consider the applicability of ORS 656.319(6) to claimant's "[t]emporary disability accruing from the date of the order," which must begin no later than the fourteenth day after the date the order is filed. OAR 436-060-0150(5)(h). First, we 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 or inaction occurred. Id.

In French-Davis, the court explained that "inaction" under ORS 656.319(6) refers to "affirmative inaction," or a failure to perform a time-specific duty, request, or obligation. 186 Or App at 285. Here, the employer had a time-specific obligation to begin paying "post-ALJ order accrued" temporary disability benefits 14 days after the ALJ's order, and it did not comply with that obligation. See OAR 436-060-0150(5)(h). However, the payment due 14 days after the issuance of the prior ALJ's order was not the employer's only time-specific obligation to paytemporary disability benefits. Additionally, OAR 436-060-0150(6) dictates that "[t]emporary disability must be paid to within seven days of the date of payment at least once each 14 days."

Based on the French-Davis court's interpretation of ORS 656.319(6) and the provisions of OAR 436-060-0150(5)(h) and (6), we conclude that the employer had time-specific duties to both pay accrued temporary disability benefits within 14 days of the issuance of the prior ALJ's order, and to continue paying temporary disability benefits at least every 14 days thereafter.

The prior ALJ's order was issued on March 6, 2013. The employer's first payment of "post-ALJ order accrued" temporary disability benefits was due on March 20, 2013 (14 days later). See OAR 436-060-0150(5)(h). Pursuant to ORS 656.319(6), claimant's request for hearing concerning this period of disability benefits must have been filed by March 20, 2015, two years after the employer failed to complete its "time specific duty." Therefore, claimant's April 1, 2015 hearing request did not timely raise the issue of the employer's failure to pay temporary disability benefits in the first 14 day period following the prior ALJ's order. Accordingly, insofar as it pertains to that issue, claimant's hearing request must be dismissed.

We proceed to analyze the applicability of ORS 656.319(6) to the periods of temporary disability benefits accruing after the initial 14-day installment period following the issuance of the prior ALJ's order. Based on the following reasoning, we conclude that consideration of individual periods of temporary disability benefits is appropriate because the issue concerns the "inaction" of the employer in failing to comply with multiple time-specific obligations to pay temporary disability benefits. See French-Davis, 186 Or App at 285.

In Randall E. Kelley, 54 Van Natta 1645 (2002), we held that ORS 656.319(6) did not apply to each period of disability that the carrier paid before it later asserted an "overpayment" based on a recalculation of the claimant's average weekly wage (AWW) including "extended gaps." Instead, we reasoned that the two-year limitation of ORS 656.319(6) began at the time that the carrier asserted the overpayment.

In Kelley, the carrier's recalculation of the claimant's AWW and assertion of an overpayment triggered the two-year time limitation of ORS 656.319(6). 54 Van Natta at 1646.

In this case, by contrast, OAR 436-060-0150(5)(h) and (6) establish specific time frames for the payment of temporary disability benefits generally, and following an ALJ's order. Those time-specific obligations fell on multiple dates. Therefore, we evaluate each obligation separately in determining which of the multiple issues raised by claima...