In re Comp. of Swint, WCB Case No. 17-01519

• Decision Date: 16 June 2021
• Docket Number: WCB Case No. 17-01519
• Citation: 73 Van Natta 504
• Parties: In the Matter of the Compensation of JUSTIN A. SWINT, Claimant
• Court: Oregon Workers' Compensation Division

73 Van Natta 504

In the Matter of the Compensation of JUSTIN A. SWINT, Claimant

WCB Case No. 17-01519

Oregon Workers' Compensation Division

June 16, 2021

ORDER ON REMAND

Moore & Jensen, Claimant Attorneys

Tolleson Conratt Nielsen et al, Defense Attorneys

Reviewing Panel: Members Curey and Ousey.¹

This matter is before the Board on remand from the Court of Appeals. Swint v. City of Springfield, 305 Or App 679 (2020). The court has reversed the Board's order, Justin A. Swint, 70 Van Natta 451 (2018), which had found claimant's hearing request untimely under ORS 656.319(6) and dismissed the hearing request. Reasoning that our order lacked substantial reason, the court reversed and remanded. Having received the parties' briefs on remand, we proceed with our review in accordance with the court's directive.

FINDINGS OF FACT

We adopt the ALJ's "Findings of Fact," as summarized in our Order on Review and below.

On September 18, 2014, claimant, a police officer, suffered a compensable injury to his left lower extremity. (Exs. 2-4). He was released to light duty on September 26, 2014, and he subsequently returned to modified work in October 2014. (Exs. 6-3, 10, 11; Tr. 14).

On October 8, 2014, the self-insured employer's claim administrator sent a Notice of Wage Calculation letter to claimant, advising him of the employer's temporary total disability (TTD) rate and average weekly wage (AWW) calculations, but stating that the employer had elected to provide "salary continuation" in lieu of paying temporary disability benefits.² (Ex. 14).The notice explained that the AWW/TTD information was being provided because any work disability award, if determined to be due at the time of closure, would be based on that wage calculation. (Id.) The notice further advised that if claimant disagreed with the wage calculation, he must immediately notify the claim administrator of his disagreement. (Id.)

In lieu of temporary disability benefit payments, the employer continued to pay claimant his regular base pay plus benefits (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 indicated the hourly rate used to calculate his wages, which represented claimant's regular hourly base pay rate.³ (Id.)

Wage continuation payments continued to be paid every two weeks until February 2017, when claimant was released to regular work without restrictions. (Exs. 6-63, 54).

On April 7, 2017, claimant requested a hearing to challenge the employer's processing of his temporary disability benefits. In response, among other contentions, the employer asserted that claimant's hearing request was untimely filed under ORS 656.319(6).

In May 2017, the employer recalculated claimant's AWW and TTD rate using his earnings, including overtime earnings, for the 52-week period prior to the injury. (Exs. 70, 71). The employer's recalculated TTD rate was higher than the net wage continuation payments.

CONCLUSIONS OF LAW AND OPINION

The ALJ concluded that claimant's April 7, 2017, hearing request was timely filed under ORS 656.319(6). Finding that the employer's salary continuation payment amounts were less than claimant's entitlement based on his AWW/TTD rate, the ALJ directed the employer to pay claimant TTD and TPD benefits at the recalculated rate, less time worked, for the period from September 18, 2014 (the date of injury) through February 28, 2017 (when claimant was released to regular work). The ALJ awarded a penalty and attorney fees under ORS 656.262(11)(a) and ORS 656.383(2).

On review of the ALJ's order, we dismissed claimant's April 7, 2017, hearing request as untimely, finding that the employer's first wage continuation payment on October 10, 2014, was the "action" that triggered the two-year limitation under ORS 656.319(6). We reasoned that claimant's challenge to the employer's processing of temporary disability benefits concerned the employer's "action" of making the initial payment of wage continuation benefits.

The court reversed our decision. Swint, 305 Or App at 689. The court noted that our analysis did not identify what processing obligations the employer had with regard to calculating and correcting claimant's wages for purposes of ORS 656.262(4)(b), and when those processing obligations must occur. Id. at 685. Concluding that our order lacked adequate explanation, the court reversed and remanded for further consideration. Having considered the parties' supplemental briefs, we proceed with our review.⁴

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."

First, we identify what specific "action or inaction" constituted 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 CentralBowl, 186 Or App 280, 284 (2003); Armando Morin, 68 Van Natta 1760, 1762 (2016); Terrizino D. Williams, 58 Van Natta 1487, 1489 (2006). Then, we identify when that action or inaction occurred. Id.

Timely payment of temporary disability compensation is required by OAR 436-060-0150(6). We apply the version of the rule in effect at the time of claimant's injury. (WCD Administrative Order 11-052, eff. April 1, 2011); Robert J. Marsh, 69 Van Natta 408, 414 n 6 (2017). That rule provides:

"Temporary disability must be paid to within seven days of the date of payment at least once each 14 days. When making payments as provided in OAR 436-060-0020(1), the employer may make subsequent payments of temporary disability concurrently with the payroll schedule of the employer, rather than at 14-day intervals."

An employer may, instead, make wage-continuation payments pursuant to ORS 656.262(4)(b), which provides that "if a self-insured employer pays to an injured worker who becomes disabled the same wage at the same pay interval that the worker received at the time of the injury, such payment shall be deemed timely payment of temporary disability payments pursuant to ORS 656.210 and 656.212 during the time the wage payments are made."

In Morin, we explained that the then-current version of OAR 436-060-0150(6) created ongoing, time-specific obligations for the carrier's processing of temporary disability benefits, which were required to be paid every 14 days. See Morin, 68 Van Natta at 1763-64. Therefore, we determined that each of the carrier's temporary disability payments, which were due within two years of the filing of the claimant's hearing request, were within the scope of our review under ORS 656.319(6). Id. at 1764.

Here, the employer, like the carrier in Morin, also had an ongoing obligation under OAR 436-060-0150(6) to accurately and timely process temporary disability benefits every 14 days (or consistent with the employer's payroll schedule). The employer was required to timely and accurately provide the temporary disability benefits due to claimant with each payment. Therefore, we reject the employer's contention that because its initial calculation and payment of temporary disability benefits was more than two years before claimant's April 7, 2017, hearing request, its determination of claimant's salary continuation is wholly unreviewable. Because paying temporary disability benefits is an "action," we conclude that the accuracy of each temporary disability payment made within two years prior to claimant's hearing request is reviewable, consistent with ORS 656.319(6).

Citing Jesse G. Ayala, Jr., 66 Van Natta 1845, 1850 (2014), the employer contends that it had no obligation, by statute or rule, to reevaluate its initial computation of claimant's temporary disability benefits. Based on the following reasoning, Ayala is distinguishable.

In Ayala, the claimant's employment was terminated after a work-related injury. 66 Van Natta at 1845. Based on the employer's termination of the employment, and the availability of modified duty work, the carrier converted the claimant's TTD benefits to temporary partial disability (TPD), and reduced his temporary disability benefits to zero based on "post-injury" earnings that would have been available but for the termination. Id. The carrier began calculating the claimant's TTD benefits as TPD in August 2010, and "awarded" those benefits in a February 2011 Notice of Closure. Id. at 1850. As such, the claimant's April 2013 hearing request was more than two years after both of the carrier's "actions" concerning its processing of temporary disability benefits. Id. Because none of the actions that were the subject of the hearing request had occurred within two years prior to the hearing request, we found that we, and the ALJ, lacked jurisdiction. Id.

Here, in contrast, the employer contends that the sole reviewable action was its initial calculation of TTD entitlement, and it had no subsequent obligation, absent a dispute or change in circumstances, to recalculate claimant's AWW or TTD rate. Although ORS 656.262(4)(g) and OAR 436-060-0150(6) do not specifically establish timeframes for recalculation or correction of errors in the employer's temporary disability benefit payments, we do not agree with the employer's limited characterization of its "time-specific obligations." We reason as follows.

The employer had obligations to not only make temporary disability payments at specific times, but also to make them in the correct amounts. The obligation to accurately and timely pay temporary disability benefits at regular intervals, consistent with the timeframes provided in OAR 436-060-0150(6), is ongoing. To the extent it paid temporary disability benefits inaccurately, each of the employer's payments made less than two...