Keller v. SAIF

Decision Date27 June 2001
Citation175 Or. App. 78,27 P.3d 1064
PartiesIn the Matter of the Compensation of Joseph H. Keller, Claimant. Joseph H. KELLER, Petitioner, v. SAIF CORPORATION and Alan Bowdish, Inc., Respondents.
CourtOregon Court of Appeals

Lauren Paulson, Aloha, argued the cause and filed the brief for petitioner.

Jerome P. Larkin argued the cause and filed the brief for respondents.

Before DEITS, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM, KISTLER, BREWER, Judges, and LIPSCOMB, Judge pro tempore.

Resubmitted En Banc April 11, 2001.

WOLLHEIM, J.

Claimant seeks review of an order of the Workers' Compensation Board, asserting that the Board erred in concluding that his claim for a work-related injury was barred as untimely. We conclude that the Board did not err and therefore affirm.

The facts are undisputed. Claimant twisted his ankle at work on October 23, 1997. He did not notify employer or seek medical attention because he thought that the injury was minor and would heal on its own. Employer was aware that claimant had injured his foot but did not know that the injury had occurred at work. Claimant continued to experience pain, however, and in December 1997 he sought medical attention. On October 20, 1998, claimant filed a claim and thereby notified employer that the injury was work-related. Employer denied the claim as untimely. An administrative law judge (ALJ) and the Board upheld the denial, and claimant seeks review.

The case turns on an interpretation of ORS 656.265. As relevant, that statute provides:

"(1) Notice of an accident resulting in an injury or death shall be given immediately by the worker or a dependent of the worker to the employer, but not later than 90 days after the accident. * * *

"* * * * *

"(4) Failure to give notice as required by this section bars a claim under this chapter unless the notice is given within one year after the date of the accident and:

"(a) The employer had knowledge of the injury or death[.]" (Emphasis added.)

Although claimant acknowledges that he did not file his claim within 90 days, he asserts that his claim is not barred because it satisfies the exception stated in ORS 656.265(4)(a).

Claimant's argument raises two distinct issues under the statute. The first issue that we address is the time within which the employer must have had knowledge of the injury. In claimant's view, the knowledge requirement is satisfied if the employer learns of the injury any time within one year after the date of the accident. Thus, in claimant's view, the delayed notice, filed within one year of the date of the accident, can give knowledge of the injury. In employer's view, the employer must have knowledge of the injury within the 90-day period for filing notice of the claim. We agree with employer. In the first place, this court has implicitly held, in McNett v. Roy-Ladd Const. Co., 46 Or.App. 601, 613 P.2d 47, rev. den. 289 Or. 588 (1980) (knowledge exception inapplicable because knowledge acquired after 180-day deadline for giving notice of claim did not prejudice employer), that knowledge gained after the initial notice period does not satisfy the exception.

Secondly, an analysis of the statute under the template of PGE v. Bureau of Labor and Industries, 317 Or. 606, 859 P.2d 1143 (1993), confirms our interpretation. Contrary to the view expressed by the dissent, the statutory language is not unclear as to when the employer must gain knowledge of the injury. Although ORS 656.265(4)(a) does not explicitly state a time period within which the employer must have acquired knowledge of the injury, the conclusion that knowledge of the injury must be gained within the 90-day period for filing a claim is the only plausible reading of the statute. The text of ORS 656.265(4)(a) requires that the employer "had knowledge" of the injury, implicitly requiring that the knowledge came before the delayed notice permitted by ORS 656.265(4). Further, the context of subparagraph (4)(a), in its logical flow from subsection (1), requires the conclusion that the employer's knowledge must have been gained within the 90-day period set forth in subsection (1). Subsection (1) provides that notice of an accident resulting in injury "shall be given immediately * * * but not later than 90 days after the accident." Subsection (4) provides that a claim is barred if the required notice is not given, unless one of the exceptions is applicable. The exception described in subparagraph (4)(a) requires that notice be given within one year of the accident and that "the employer had knowledge of the injury or death." Although no specific time period for the acquisition of knowledge is set forth in subparagraph (4)(a), the logical sequence of the language suggests that the knowledge of the injury must be gained by the employer during the initial notice period set out in subsection (1) and to which the exception applies. Thus, a claimant is excused from giving formal notice within 90 days, so long as the employer had actual knowledge of the injury during that same 90-day time period and the claimant gave formal notice within one year.1

Finally, claimant's reading of the exception stated in ORS 656.265(4)(a) would, essentially, swallow up the rule stated in ORS 656.265(1) and (4). If, as claimant asserts, a claim is not barred and is permitted to go forward when, within one year of the injury, a notice of claim is filed and the employer acquires knowledge of the injury, then there would be no need for subsection (1) or for the first clause of the first sentence of subsection (4) ("Failure to give notice as required by this section bars a claim under this chapter[.]"). We will not construe a statute in a way that renders its provisions superfluous. ORS 174.010. In giving effect both to the 90-day requirement of subsection (1) and to the exception set forth in subparagraph (4)(a), we conclude that the statute must be read to require that the employer have knowledge of the injury within 90 days of the accident.2

The second issue that claimant's petition raises is the extent of the knowledge required by ORS 656.265(4)(a). In claimant's view, it is sufficient that employer knew, within 90 days after the accident, that claimant had injured his foot, although it was unaware of the possibility that the injury was work-related. We reject the contention. In Argonaut Ins. Co. v. Mock (A41801), 95 Or. App. 1, 768 P.2d 401, rev. den. 308 Or. 79, 775 P.2d 322 (1989), this court said that the employer's "knowledge of the injury" under ORS 656.265(4)(a)

"must be sufficient reasonably to meet the purposes of prompt notice of an industrial accident or injury. If an employer is aware that a worker has an injury without having any knowledge of how it occurred in relation to the employment, there is no reason for the employer to investigate or to meet its responsibilities under the Workers' Compensation Act. Actual knowledge by the employer need not include detailed elements of the occurrence necessary to determine coverage under the act. However, knowledge of the injury should include enough facts as to lead a reasonable employer to conclude that workers' compensation liability is a possibility and that further investigation is appropriate." 95 Or.App. at 5,768 P.2d 401.

Thus, this court has previously required that the employer have knowledge of not merely an injury but also of the injury's possible relationship to the employment. See also Wilson v. Roseburg Forest Products, 113 Or. App. 670, 673-74, 833 P.2d 1362 (1992). Here, it is conceded that employer had no knowledge of the injury's potential work connection until the date when claimant filed his claim, almost one year after the injury.

The dissent points out that ORS 656.265(4)(a) has been amended since we decided Mock. However, the changes did not alter the language that we considered in Mock or that is under consideration here, and we are not persuaded that the changes have any bearing on the issue of what type of knowledge the employer must have. Then, as now, the employer must have had "knowledge of the injury."

Further, we disagree with the dissent's assertion that our pre-PGE analysis in Mock must be reevaluated. It remains precedential in the aftermath of that decision. See Kambury v. DaimlerChrysler Corporation, 173 Or.App. 372, 379, 21 P.3d 1089 (2001). Even if we were to reevaluate Mock, however, it withstands scrutiny. As the dissent notes, subsection (1) of ORS 656.265 provides that "[n]otice of an accident resulting in an injury or death " shall be given immediately, but not later than 90 days after the accident. Subsection (4) lists two exceptions to the 90-day limitation, including the one alleged to be applicable here, that "[t]he employer had knowledge of the injury or death." (Emphasis added.) It is apparent that the legislature intended the two subsections to work together. Subsection (1) describes the time limitation for giving notice of "an accident resulting in injury," and subparagraph (4)(a) provides for an exception to that requirement when the employer receives notice within one year and had "knowledge of the injury." "Knowledge of the injury" as used in subsection (4) can only mean knowledge of the injury referred to in subsection (1) as the alleged result of an accident, and necessarily includes knowledge of the alleged work relationship.3 See Osborn v. PSRB, 325 Or. 135, 142, 934 P.2d 391 (1997) (analyzing use of different modifiers in different statute). The dissent mistakenly reads "the injury" as used in subsection (4) in isolation from and without regard to its original reference in subsection (1) and thereby would reach the unintended result that the statute is satisfied if the employer has knowledge of an injury, even if the employer had no knowledge that the injury was possibly work-related.

In summary, the...

To continue reading

Request your trial
7 cases
  • Lahmann v. Grand Aerie Of Fraternal Order Of eagles
    • United States
    • Oregon Court of Appeals
    • October 12, 2005
    ...subsection (1)--and therefore are not within the meaning of the act--subsection (2) is read out of existence. See Keller v. SAIF, 175 Or. App. 78, 82, 27 P.3d 1064 (2001), rev den, 333 Or. 260, 39 P.3d 193 (2002) ("We will not construe a statute in a way that renders its provisions superflu......
  • MAQUIEL v. Adkins
    • United States
    • Oregon Court of Appeals
    • June 27, 2001
  • In re Jondle
    • United States
    • Oregon Court of Appeals
    • February 2, 2022
    ...As this court has explained, "[w]e will not construe a statute in a way that renders its provisions superfluous. Keller v. SAIF , 175 Or. App. 78, 82, 27 P.3d 1064 (2001), rev. den. , 333 Or. 260, 39 P.3d 193 (2002) (citing ORS 174.010 ).Instead, a more plausible interpretation is that the ......
  • Liles v. Damon Corporation
    • United States
    • Oregon Court of Appeals
    • December 27, 2006
    ...on Comp. Ins., 318 Or. 614, 622, 872 P.2d 1 (1994), or where a PGE analysis confirms the prior interpretation; see Keller v. SAIF, 175 Or.App. 78, 81, 27 P.3d 1064 (2001). 8. In Johnson, the Oregon Supreme Court stated that, "if the literal import of the words [of a statute] is so at varian......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT