In re Comp. of Krossman, WCB Case No. 17-03354
| Decision Date | 12 July 2019 |
| Docket Number | WCB Case No. 17-03354 |
| Citation | 71 Van Natta 775 |
| Parties | In the Matter of the Compensation of DEVYNNE C. KROSSMAN, Claimant |
| Court | Oregon Workers' Compensation Division |
ORDER ON RECONSIDERATION
Ronald A Fontana, Claimant Attorneys
Reviewing Panel: Members Curey and Ousey.
On March 12, 2019, we abated our previous order that awarded a penalty for the self-insured employer's allegedly unreasonable denial of claimant's new/omitted medical condition claim for Raynaud's Syndrome. We took this action to consider the employer's motion for reconsideration, asserting that the record lacks evidence of any "amounts then due" on which to base a penalty under ORS 656.262(11)(a). In response, claimant contends that an ORS 656.262(11)(a) penalty was appropriately awarded. Claimant also seeks reconsideration of those portions of our order that declined to award an ORS 656.386(1) attorney fee and impose sanctions under ORS 656.390.1 Having considered the parties' supplemental arguments, we proceed with our reconsideration.
In our previous order, we concluded that the employer's ongoing denial was unreasonable in light of the changed opinions from Drs. Button, Nolan, and Bell. Thus, we found that claimant was entitled to a penalty under ORS 656.262(11)(a).
On reconsideration, the employer asserts that the ORS 656.262(11)(a) penalty is not awardable because the record does not establish any "amounts then due." Claimant responds that, based on Walker v. Providence Health Sys. Oregon, 267 Or App 87 (2014), such a penalty is awardable in the absence of evidence of "amounts then due." After further consideration, we conclude that, based on this particular record, an ORS 656.262(11)(a) penalty cannot be assessed. We reason as follows.
ORS 656.262(11)(a) provides for a penalty up to 25 percent of any "amounts then due" if the carrier unreasonably refuses to pay compensation or unreasonably delays the acceptance or denial of a claim. As the proponent of the penalty issue, claimant bears the burden of establishing such an award. See Alma R. Aguilar, 55 Van Natta 3690 (2003).
We have previously held that an ORS 656.262(11)(a) penalty is not assessable when the record does not contain evidence of "amounts then due." See e.g., Aguilar, 55 Van Natta at 3692 (); Major G. Clough, 55 Van Natta 2848 (2003) ().
Accordingly, consistent with our prior decisions, claimant is not entitled to a penalty under ORS 656.262(11)(a) in the absence of evidence in the record establishing that there are "amounts then due." Here, the record does not contain any evidence establishing that there were any "amounts then due" related to claimant's Raynaud's Syndrome of the left thumb as of the date of the hearing.
Claimant does not assert that the record contains any such evidence. Rather, she contends, based on Walker, that such evidence is not required for the assessment of an ORS 656.262(11)(a) penalty. Based on the following reasoning, we disagree with claimant's contention.
In Walker, we had previously concluded that, although the carrier had unreasonably delayed the acceptance of the claimant's major depression and panic disorder condition, an ORS 656.262(11)(a) penalty could not be assessed because there were no "amounts then due" at the time of the Notice of Closure. 267 Or App at 107. The court reversed that portion of our order, concluding that the claimant was entitled to a penalty under ORS 656.262(11)(a) for the carrier's unreasonable delay in acceptance based on the amount of compensation ultimately awarded on the claim (rather than the amount awarded in the Notice of Closure). Id. at 108. In other words, the court held that the "amount then due" for purposes of ORS 656.262(11)(a) is the amount of compensation ultimately determined to be owed to the claimant as of the date of the carrier's unreasonable action. Id. at 107.
However, the record in Walker contained evidence of the amount ultimately awarded on the claim (i.e., the record contained a reconsideration order in which the claimant was awarded 35 percent permanent partial disability for the major depression and panic disorder condition). Id. Thus, the record in Walker contained evidence of the "amounts then due" for purposes of ORS 656.262(11)(a). Here, in contrast, the record does not include evidence establishing the existence of any "amounts then due" as of the date of the employer's unreasonable action/inaction. Therefore, we consider Walker to be distinguishable.
Consequently, in lieu of our previous determination, we conclude that claimant is not entitled to an ORS 656.262(11)(a) penalty, because the record does not establish that there were any "amounts then due."2
Accordingly, on reconsideration, as supplemented and modified herein, we republish our February 13, 2019, order. The parties' rights of appeal shall begin to run from the date of this order.
IT IS SO ORDERED.
1. We adhere to that portion of our previous order that declined to impose sanctions under ORS 656.390 without discussion. Turning to the ORS 656.386(1) attorney fee, claimant asserts that she is entitled to such a fee based on Shearer's Foods v. Hoffnagle, 363 Or 147 (2018), and SAIF v. Bales, 274 Or App 700 (2015). Based on the following reasoning, we disagree with claimant's contention.
In Hoffnagle, the Supreme Court held that the claimant "finally prevailed * * * in a petition for review to the Supreme Court" for purposes of ORS 656.386(1)(a) when the carrier's petition for judicial review was denied. In doing so, the court interpreted only that portion of the statute that authorizes an attorney fee award when a claimant finally prevails against the denial in "[a] * * * petition for review to the Supreme Court." In Bales, the court interpreted only that portion of ORS 656.386(1) that authorizes an attorney fee award where an attorney is instrumental in obtaining a rescission of the denial prior to a decision by an ALJ.
Thus, neither case addressed the portion of the statute at issue in this case (i.e., the portion that authorizes an attorney fee award when a claimant ...
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