MATTER OF ANDREWS, 55 Van Natta 3499 (Or. Work. Comp. 10/14/2003), WCB Case No. 02-09432.
| Decision Date | 14 October 2003 |
| Docket Number | WCB Case No. 02-09432. |
| Parties | In the Matter of the Compensation of JAMES P. ANDREWS, Claimant. |
| Court | Oregon Workers' Compensation Division |
Reviewing Panel: En banc. Member Langer concurs. Members Phillips Polich and Biehl dissent.
The insurer requests review of those portions of Administrative Law Judge (ALJ) Hazelett's order that: (1) directed the insurer to pay temporary total disability benefits to claimant effective November 28, 2002; and (2) assessed a penalty for the insurer's allegedly unreasonable resistance to the payment of compensation. In its reply brief, the insurer moves to strike claimant's respondent's brief on the basis that it was untimely. On review, the issues are motion to strike, temporary disability and penalties. We grant the motion to strike and reverse.
We adopt the ALJ's findings of fact.
CONCLUSIONS OF LAW AND OPINION
The insurer moves to strike claimant's respondent's brief on the basis that it was untimely.
Pursuant to OAR 438-011-0020(2), a respondent's brief must be filed within 21 days after the date of mailing of the appellant's brief. For purposes of filing appellate briefs, "filing" is defined as "the physical delivery of a thing to any permanently staffed office of the Board, or the date of mailing." OAR 438-005-0046(1)(a). An attorney's certificate that an item was deposited in the mail on a stated date is proof of mailing on that date. OAR 438-005-0046(1)(d).
Here, claimant was granted an extension for filing his respondent's brief. See OAR 438-011-0020(3). As a result, claimant's respondent's brief was due on or before May 13, 2003. However, claimant filed his brief on May 27, 2003 as evidenced by the certificate of mailing. Consequently, claimant's respondent's brief was untimely filed. We grant the insurer's motion to strike and have not considered claimant's brief on review.
Claimant compensably injured his neck in January 2002. On January 28, 2002, Dr. Ross performed a right C5 and C6 posterior forminotomy. (Ex. 1J). The insurer accepted a "C5-6 disc bulge, right radiculopathy C5 and C6, due to 01/15/02 incident combined with preexisting and non compensable cervical foraminal stenosis and exaggerated lordosis so long as, and to the extent that, the injury is and remains the major contributing cause of the disability or of the need for treatment of the combined condition." (Ex. 3).
The primary issue in this case concerns claimant's entitlement to temporary total disability (TTD) or temporary partial disability (TPD) benefits beginning on November 28, 2002. On November 14, 2002, Dr. Ross, claimant's attending physician, responded to a letter from the insurer regarding a job analysis for claimant in a modified position of administrative assistant. (Ex. 4). Dr. Ross reviewed the job analysis and found it was appropriate for claimant. In response to the insurer's question "Is he physically able to commute to the worksite?" Dr. Ross checked "Yes." (Ex. 4-1). In response to "Is he able to drive himself?" Dr. Ross checked "No." (Id.)
On November 21, 2002, the insurer wrote to claimant regarding the modified work offer. (Ex. 5). The letter informed claimant that his treating physician had released him for modified work, had agreed that the modified job was within his capabilities and that "the commute is within your physical capacities." (Id.) Claimant was asked to report for work at the employer's premises in Klamath Falls, beginning on December 2, 2002, from 8 am to 5 pm, Monday through Friday, at a wage of $7 per hour. (Id.) Claimant lived in Keno, which was 17 miles from Klamath Falls. (Tr. 11).
On December 3, 2002, claimant's attorney wrote to the insurer regarding the modified work offer. (Ex. 6A). Claimant's attorney asserted that claimant had not been released to drive, but he would accept modified work as soon as Dr. Ross indicated he could drive to work. (Id.)
In December 2002, Drs. Greenberg and Ross reported that claimant was unable to drive because of his right arm condition. (Exs. 6C, 10). Dr. Greenberg also indicated that claimant was unable to drive because he was taking opioid medications. (Ex. 10).
At hearing, claimant argued that he was entitled to TTD benefits beginning November 28, 2002. The ALJ agreed with claimant. The ALJ reasoned that the insurer's modified job offer did not comply with ORS 656.268(4)(c) because there was no evidence that Dr. Ross had advised claimant of the authorization for modified work. In addition, the ALJ found claimant was unable to drive because of the compensable injury and that the modified job offer required a commute that was beyond claimant's physical capacity. The ALJ explained that claimant lived in a rural area near a small town and there was no bus, no commuter pool and no regular and reliable taxi service available to him.
On review, the insurer first argues that the ALJ erred by addressing an issue not raised by the parties. The insurer contends that the issue of whether the insurer's modified job offer was procedurally invalid was not before the ALJ. For the following reasons, we agree with the insurer.
At hearing, the parties agreed that the issues were the reduction of claimant's temporary disability benefits in November 2002, penalties for the allegedly unreasonable resistance to the payment of compensation and attorney fees. (Tr. 3-5). Claimant's attorney asked the ALJ to (Tr. 6). The ALJ said that his understanding from a previous discussion was that the parties intended "to reserve all other issues except the specific ones actually raised in this hearing." (Id.) Both parties agreed with the ALJ's statement. (Id.) There is no evidence that claimant argued that the insurer's modified job offer on November 21, 2002 was procedurally invalid. Specifically, there is no evidence that claimant challenged the modified job offer on the basis that it did not strictly comply with ORS 656.268(4)(c) because there was no evidence that Dr. Ross had advised claimant of the authorization for modified work.
An ALJ's scope of review is limited to the issues raised by the parties. E.g., Saedeh K. Bashi, 46 Van Natta 2253 (1994). We find no evidence that claimant challenged the procedural validity of the insurer's November 21, 2002 modified job offer. In previous cases, we have held that a procedural argument may be addressed by an ALJ provided that a party raised such an argument. See generally Diane S. Hill, 48 Van Natta 2351, 2353 n2 (1996) (citing EBI Companies v. Thomas, 66 Or App 105 (1983) (), aff'd mem Hill v. Stuart Andersons, 149 Or App 496 (1997).
Here, the parties expressly agreed that the ALJ was to address only the specific issues actually raised at the hearing. Because claimant challenged the "commuting" issue (i.e., a substantive matter), the ALJ should not have addressed, sua sponte, the "procedural" issue of whether the worker was advised of the offer's authorization by claimant's attending physician. See Weyerhaeuser v. Bryant, 102 Or App 432, 435 (1990) (). Instead, we confine our review to the precise issue framed by the parties at hearing. See Gerardo Cruz-Lopez, 54 Van Natta 1716, 1722 n3 (2002).
We turn to the issue raised by the parties. ORS 656.268(4) provides, in part:
The dispute in this case pertains to the phrase "[r]equires a commute that is beyond the physical capacity of the worker according to the worker's attending physician[.]" ORS 656.268(4)(c)(A). The insurer argues that "commute" means to travel from one place to the other. According to the insurer, "commute" does not imply anything with respect to one's physical condition or mode of travel. The insurer asserts that it is only necessary for the attending physician to determine whether claimant can perform the modified work and whether claimant is healthy enough to commute to a job. The insurer contends that the physician has no part in determining any specific mode of commuting.
In construing a statute, we attempt to ascertain the intention of the legislature, looking first to the text and the context of that statute. PGE v. Bureau of Labor and Industries, 317 Or 606, 610-11 (1993). Words of common usage typically should be given their plain, natural, and ordinary meaning and, if the intent of the legislature is clear from the examination of text and context, further inquiry is unnecessary. Id. at 611.
Here, we must construe ORS 656.268(4)(c)(A), which provides that an offer of modified employment may be refused by the worker without the termination of TTD benefits if the offer "[r]equires a commute that...
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