Lasley v. Ontario Rendering

• Decision Date: 12 August 1992
• Citation: 114 Or.App. 543,836 P.2d 184
• Parties: In the Matter of the Compensation of Earnest E. Lasley, Claimant. Earnest E. LASLEY, Petitioner, v. ONTARIO RENDERING and SAIF Corporation, Respondents. 89-21542; CA A68972.
• Court: Oregon Court of Appeals

Page 184

836 P.2d 184

114 Or.App. 543

In the Matter of the Compensation of Earnest E. Lasley, Claimant.

Earnest E. LASLEY, Petitioner, v. ONTARIO RENDERING and SAIF Corporation, Respondents.

89-21542; CA A68972.

Court of Appeals of Oregon.

Argued and Submitted Dec. 30, 1991.

Decided Aug. 12, 1992.

Clayton C. Patrick, Salem, argued the cause, for petitioner. Douglas J. Rock, J. Robert Moon, Jr., and Coughlin, Leuenberger & Moon, P.C., Ontario, filed the brief, for petitioner.

Steven R. Cotton, Sp. Asst. Atty. Gen., Salem, argued the cause, for respondents. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before BUTTLER, P.J., and ROSSMAN and De MUNIZ, JJ. BUTTLER, Presiding Judge.

Claimant seeks review of an order of the Workers' Compensation Board reversing the referee's decision on review of an order of the Director of the Department of Insurance and Finance concerning claimant's eligibility for vocational assistance.

This is the first case in which we are asked to address the scope of, and standard for, review of a decision of the Director pursuant to ORS 656.283(2), concerning vocational assistance. The Director determined that claimant was disqualified from vocational services under OAR 436-120-045(7), which provided that the eligibility of a worker for those benefits ends when "[t]he worker has failed, after written warning, to cooperate in the development of a return-to-work plan." The referee modified the Director's decision, concluding that the facts support only the conclusion that claimant was disqualified from receiving benefits under OAR 436-120-045(10), which provided that the eligibility of a worker for vocational assistance ends when "[t]he worker's lack of suitable employment cannot be resolved by currently providing vocational assistance." Under those circumstances, claimant would be eligible for services later when they could be of assistance to him.

The Board concluded that the referee had erred and held that the Director had not abused his discretion in disqualifying claimant under OAR 436-120-045(7). It reversed the referee. The Board also held that, having been disqualified under that section, claimant is ineligible for benefits in the future. On review, claimant contends that his entitlement to services would have been more appropriately terminated pursuant to OAR 436-120-045(10), and he argues that the Director abused his discretion in not terminating benefits pursuant to that subsection.

ORS 656.283 provides, in part:

"(1) Subject to subsection (2) of this section and ORS 656.319, any party or the director may at any time request a hearing on any question concerning a claim.

"(2) If a worker is dissatisfied with an action of the insurer or self-insured employer regarding vocational assistance, the worker must first apply to the director for administrative review of the matter before requesting a hearing on that matter. Such application must be made not later than the 60th day after the date the worker was notified of the action. The director shall complete the review within a reasonable time, unless the worker's dissatisfaction is otherwise resolved. The decision of the director may be modified only if it:

"(a) Violates a statute or rule;

"(b) Exceeds the statutory authority of the agency;

"(c) Was made upon unlawful procedure; or

"(d) Was characterized by abuse of discretion or clearly unwarranted exercise of discretion."

The remainder of the section deals generally with the process for requesting a hearing on a claim, the assignment of the case by the Board to a referee, the making of a record and the hearing procedure.

OAR 436-120-210 is the administrative rule relating to vocational assistance disputes. It provides, in part:

"(1) Under ORS 656.283, a worker must first apply to the Director for administrative review of a vocational assistance matter before requesting a hearing on the matter. * * * An order of the Director under section (6) of this rule constitutes such a review.

" * * * * *

"(6) If a worker's dissatisfaction about a vocational assistance matter has not been resolved by a conference or otherwise, the Director will issue a written decision within a reasonable time. This decision will be the final order of the Director in the matter, as prescribed in ORS 656.283. Appeal may be made as provided in that statute, but shall not stay compliance with the order."

Under both the statute and the rule, if a worker is dissatisfied with the insurer's or self-insured employer's action concerning vocational assistance, he must seek administrative review by the Director before requesting a hearing. Neither the statute nor the administrative rule requires the Director to hold a hearing, to create a record or to make findings in support of his decision on a vocational assistance matter. That is consistent with the legislature's apparent intention to encourage informal and expeditious resolution of vocational assistance disputes. See SAIF v. Severson, 105 Or.App. 67, 70, 803 P.2d 1203 (1990), mod., 109 Or.App. 136, 817 P.2d 1352 (1991). Claimant sought review by the Director and, after an investigation by agency staff, the Director issued a written order concluding that claimant had failed, after several written warnings, to cooperate with his vocational consultant and is...