In re Comp. of Ayala

• Decision Date: 07 November 2014
• Docket Number: WCB Case No. 13-01796
• Parties: In the Matter of the Compensation of JESSE G. AYALA, JR., Claimant
• Court: Oregon Workers' Compensation Division

66 Van Natta 1845

In the Matter of the Compensation of JESSE G. AYALA, JR., Claimant

WCB Case No. 13-01796

Oregon Workers' Compensation Division

November 7, 2014

ORDER ON REVIEW

Ransom Gilbertson Martin et al, Claimant Attorneys

Sheridan Levine LLP, Defense Attorneys

Reviewing Panel: Members Weddell, Johnson, and Somers. Member Weddell dissents.

The self-insured employer requests review of those portions of Administrative Law Judge (ALJ) Poland's order that: (1) awarded temporary disability benefits; and (2) awarded an attorney fee for its allegedly unreasonable claim processing. On review, the issues are jurisdiction and, potentially, temporary disability and attorney fees. We vacate the ALJ's order and dismiss claimant's hearing request.

FINDINGS OF FACT

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

Claimant sustained a compensable left ankle injury on July 28, 2010. (Ex. 1). On August 2, 2010, the employer terminated claimant's employment and, in light of that termination, the claim processing agent unilaterally reduced his temporary disability benefits to zero based on "post-injury" earnings from modified employment that would have been available to him but for the termination. (Exs. 6, 38-3).

Thereafter, claimant's treating physician authorized modified work through November 2, 2010. (Ex. 26; see Ex. 27). A February 8, 2011 Notice of Closure awarded temporary partial disability (TPD) benefits from July 30, 2010 through November 2, 2010. (Ex. 36-1). That closure was not appealed and became final.

On January 16, 2013, claimant obtained a civil judgment against the employer for unlawful termination of employment for reasons related to his workers' compensation claim, with claimant receiving separate awards for economic and noneconomic damages.¹ (Exs. 38, 39).

On February 28, 2013, claimant requested reinstatement of his temporary disability benefits based on this civil determination regarding his employment. (Ex. 41). In response, the employer contended that no temporary disability benefits were due and payable between August 7, 2010 and November 2, 2010. (Ex. 44). Claimant requested a hearing, seeking temporary disability, penalties, and attorney fees.

CONCLUSIONS OF LAW AND OPINION

The ALJ awarded temporary total disability (TTD) benefits for the disputed period, as well as a penalty-related attorney fee. The employer requests review, contesting claimant's entitlement to such awards. Based on the following reasoning, we vacate the ALJ's order and dismiss claimant's hearing request.

Although neither party raised it at hearing, it is our duty to raise a lack of "jurisdiction" on our own motion. Southwest Forest Indus. v. Anders, 299 Or 205 (1985) (even if jurisdiction is not raised by the parties, it is our duty to raise lack of jurisdiction sua sponte); Tony L. Clark, 66 Van Natta 91 (2014). For the following reasons, we conclude that neither we nor the ALJ have jurisdiction over this dispute pursuant to ORS 656.319(6).

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."

We have not had occasion to address whether ORS 656.319(6) is "jurisdictional" and can be raised sua sponte. As such, we consider other subsections that use the same language. In that regard, ORS 656.319(1) states that, on objection by a claimant to a denial, a "hearing [] shall not be granted" unless certain requirements are met. It has previously been determined that ORS 656.319(1) is "jurisdictional" and cannot be waived. See Sweeden v. City of Eugene, 95 Or App 577, 578 (1989) ("Because the request for hearing was untimely [under ORS 656.319(1)(a)], the [ALJ] did not have jurisdiction to address any merits of the claim.");² David R. McKenzie, 63 Van Natta 89 , 90 n 2 (2011) (noting that, even if the carrier had not raised the issue of the claimant's timelyrequest for hearing, "the ALJ would have been obligated to consider it as a jurisdictional issue."); Allen P. Croyle, Jr., 49 Van Natta 1091, 1092 (1997) (the provisions for timely request for hearing under ORS 656.319 are jurisdictional and cannot be waived; whether or not the issue is raised at hearing, it is our duty to raise a lack of jurisdiction on our own motion); Duane Fresh, 42 Van Natta 864, 865 (1990) (the provisions for timely request for hearing are statutory and cannot be waived); see also Sadie Symonds, 48 Van Natta 940 (1996) (citing Anders and Fresh for the conclusion that, although the parties attempted to waive the issue of an untimely request, the provisions for a timely request for review of a carrier closure are established by rule and cannot be waived).

Here, as noted above, ORS 656.319(6) provides that, when there is a failure to process or an allegation that the claim was processed incorrectly, a "hearing * * * shall not be granted unless the request for hearing is filed within two years after the alleged action or inaction occurred." (Emphasis supplied). Thus, subsections (1) and (6) contain the same phrase that a hearing "shall not be granted" unless the requirements of that particular subsection are met. Because that language in subsection (1) has been interpreted as an unwaivable statutory time limitation, we interpret that identical language in subsection (6) to be the same. See PGE v. Bureau of Labor & Indus., 317 Or 606, 611 (1993) (one rule of construction of statutory text is that the use of the same term throughout a statute indicates that the term has the same meaning throughout the statute).

Moreover, the Supreme Court has stated, "The whole scheme of the Workmen's Compensation Law is purely statutory, and not according to the course of the common law. It is elementary that in acquiring jurisdiction in pursuit of a statutory remedy, the requirements of the enactment must be complied with strictly." Demitro v. State Indus. Accident Comm'n, 110 Or 110 (1924), overruled on other grounds, Stroh v. State Acc. Ins. Fund, 261 Or 117 (1972); see Anders, 299 Or at 216-17. Furthermore, in Nelson v. SAIF, 43 Or App 155, rev den, 288 Or 173 (1979), a case that involved whether a claimant's mental incapacity at the time of a denial excused his/her compliance with ORS 656.319(1), the court stated:

"It is undisputed that [the] claimant did not request a hearing on the denial within the time required [by ORS 656.319(1)].

"The benefits awarded under the workers' compensation law are purely statutory, and a claimant must strictly follow the prescribed procedures in order to recover

under the law. Gerber v. State Ind. Acc. Com., [164 Or 353 (1940)]. Time limitations prescribed by the law are limitations upon the right to obtain compensation and are not subject to exceptions contained within the general statute of limitations. Lough v. State Industrial Acc. Com., [104 Or 313 (1922)]. Neither the Board nor the courts may waive these requirements. Johnson v. [Comp. Dep't, 246 Or 449 (1967)]; Rosell v. State Ind. Acc. Com., [164 Or 173 (1940)]." Id. at 159. (Emphasis supplied).

Relying on the Nelson reasoning, in SM Motor Co. v. Mather, 117 Or App 176 (1992), the court held that the time limitations for filing a claim are jurisdictional and may not be waived by a party or by the court. Accordingly, the Mather court concluded that an argument concerning an untimely claim filing could be raised at any time. Id. at 179-80.

Similarly, here, we find that the above principles support a conclusion that the statutory time limitations prescribed in ORS 656.319(6) for filing of a request for hearing are "jurisdictional," and can be raised at any time and are not waiveable.³ Id. In other words, we conclude that timeliness is as critical to thevesting of jurisdiction to decide a challenge to a carrier's claim processing inaction/action, as it is to jurisdiction regarding an appeal of a denial or reconsideration order.

In contending that the "ORS 656.319(6)" issue is waiveable, claimant cites Steven R. Azorr, 52 Van Natta 2145 (2000), aff'd on other grounds, SAIF v. Azorr, 182 Or App 90, rev den, 335 Or 90 (2002). There, we were "not inclined" to consider a carrier's "ORS 656.319(6)" argument because it was not first raised at the hearing level. Id. at 2145. Here, noting that the employer did not raise ORS 656.319(6) at the hearing level, claimant asserts that it should not be considered on review.

We do not find Azorr controlling. Azorr did not address the Croyle/Fresh holdings, which analyze the exact language in ORS 656.319(1) and conclude that this "jurisdictional" issue of timeliness is not waiveable and is ripe for consideration on review, regardless if it was raised at the hearing level. Azorr merely states that we were "not inclined" to consider the ORS 656.319(6) argument because it was not first raised at the hearing level. Nonetheless, we then proceeded to address the argument and found that the hearing request had raised a claim processing action/inaction within the requisite two-year period. Thus, the statement on which claimant now relies is not controlling precedent, but rather dicta. Finally, our Croyle/Fresh precedent is premised on the court's rationale in Anders and Nelson, something that the Azorr dicta did not address.

Consequently, based on the aforementioned reasoning, we address whether claimant's hearing request regarding this claim processing dispute can be considered under ORS 656.319(6). For the following reasons, we conclude that the request for hearing was untimely filed.⁴

As noted above, ORS 656.319(6) provides that a claimant must request a hearing on a carrier's action/inaction in processing a claim within two years of the action/inaction. See French-Davis v. Grand Central Bowl, 186 Or App 280, 284-85 (2003). Here, the employer converted claimant's TTD benefits to TPD benefits (calculating them at zero) beginning on August 2, 2010, and continued...