MATTER OF WILLIAMS, 58 Van Natta 1487 (Or. Work. Comp. 6/20/2006)
| Decision Date | 20 June 2006 |
| Docket Number | WCB Case No. 05-01217. |
| Citation | 58 Van Natta 1487 |
| Parties | In the Matter of the Compensation of TERRIZINO D. WILLIAMS, Claimant. |
| Court | Oregon Workers' Compensation Division |
It has come to our attention that our May 24, 2006 Order on Review contains a clerical error. Specifically, in the third and fourth paragraphs on page 5 of our prior order, we used the word "tolled," when we should have used the word "triggered." To correct this oversight, we withdraw our May 24, 2006 order and replace it with the following order. The parties' rights of appeal shall begin to run from the date of this order.
Claimant requests review of Administrative Law Judge (ALJ) Davis' order that dismissed his request for hearing under ORS 656.319(6). On review, the issues are timeliness of the request for hearing and (potentially) temporary disability. We affirm in part and reverse in part.
We adopt the ALJ's "Findings of Fact."
We begin by briefly recounting the factual background of the claim. Claimant sustained a compensable injury on January 13, 2003. At the time, he was working at two jobs, for two different employers. A form 801 was completed (apparently by the employer for whom claimant was working when injured), but there was no indication on the form that claimant was working two jobs. (Ex. 1).
On January 22, 2003, claimant's attending physician took him off work. The processing agent for the "at-injury" employer paid temporary disability beginning on February 12, 2003, but its payment was based on claimant's wages for only one of the employers. Claimant called the self-insured employer's processing agent either the day he received the check or the next day and stated that his check was "short." Claimant explained that he had two jobs and was only receiving payment for one. (Tr. 11). The alleged underpayment was not corrected, however.
On August 21, 2003, a Notice of Closure issued, closing the claim and awarding temporary disability from January 22, 2003 through July 2, 2003. (Ex. 25). In October 2003, Dr. Kellogg filed a report of an aggravation of the original injury and on November 5, 2003, placed claimant on restricted duty. (Exs. 28, 29). On March 2, 2004, the employer accepted a C5-6 disc herniation.
(Ex. 33). Claimant underwent surgery for this condition in June 2004.
On February 16, 2005, claimant, pro se, filed a request for hearing, raising the issue of "supplemental pay." (Ex. 46). The request was received by Hearings Division on February 23, 2005.
The ALJ dismissed claimant's request for hearing, reasoning that it was not timely under ORS 656.319(6). That statute 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."
Claimant argues that the two-year statutory limitation did not begin to run with the February 12, 2003 temporary disability payment, because the employer was not required to calculate supplemental disability, absent identification of the secondary employment on an "801 form." See OAR 436-060-0035(2) (WCD Admin. Order 02-059, effective November 1, 2002). Claimant cites Nada Lovre, 56 Van Natta 598 (2004), where we held that the claimant was entitled to supplemental disability payments, despite not providing verifiable documentation of her additional wages within 30 days of the claim. We reasoned that the rule addressing the parties' processing obligations did not impose a 30-day time limitation on the claimant's provision of wage information about her secondary employment.
As we understand claimant's argument, the statutory time limitation never began running, because neither party complied with the administrative rules regarding calculation of supplemental temporary disability payments. However, the threshold issue is not whether the employer was required to calculate supplemental temporary disability benefits; it is whether claimant is entitled to a hearing on that issue.
Lovre is inapposite for the same reason. Although it addressed the parties'
claim processing responsibilities with respect to the substantive entitlement to supplemental disability benefits, it did not involve a procedural challenge to the timeliness of the request for hearing and it did not apply the statute of limitations at issue here. Consequently, it does not aid claimant's position.
Here, the ALJ did not decide the case based on the employer's failure to calculate claimant's supplemental disability and we do not do so on review. Instead, we first identify what specific action or inaction amounted to 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 Central Bowl, 186 Or App 280, 284 (2003). Then we identify when that action or inaction occurred. Id.
In French-Davis, the court reversed our order in Delinda S. French-Davis, 53 Van Natta 389, on recons 53 Van Natta 583 (2001), which held that the claimant's hearing request contesting a carrier's failure to process an accepted "new condition" under ORS 656.262(7)(c) to claim closure was untimely. Applying ORS 656.319(6), we had determined that the two-year period for challenging the carrier's failure to process the "new condition" to claim closure began with the carrier's acceptance of the condition and because the claimant's hearing request was filed more than two years after the acceptance, the request must be dismissed as untimely. 53 Van Natta at 391.
The court disagreed with our interpretation of ORS 656.319(6). Reasoning that the "inaction" that begins the two-year period must be some identifiable, discrete event or occurrence (in particular a failure to perform a particular, time-specific duty), the court concluded that the carrier's acceptance notice could not have triggered the two-year limitation because that acceptance imposed only a duty to reopen and process the claim, which was a duty that the carrier did not fail to perform. 186 Or App at 286. Instead, turning to ORS 656.268(5)(b), the court found that the key event under the statutory claim processing scheme that imposed an easily identifiable, discrete and time-sensitive obligation on the carrier was its duty to issue a notice of closure or of a refusal to close within 10 days of its receipt of a written request from the worker when the worker had returned to work. Id. at 287.
Applying that analysis to the case at hand, the French-Davis court stated that once the carrier failed to respond within 10 days of its receipt of claimant's request for claim closure, it failed to perform its obligation. Reasoning that this failure constituted the "inaction" that began the two-year period under ORS 656.319(6), the court concluded that, because the claimant had filed her hearing request within two years of the carrier's inaction, the request was timely. Id. at 288.
We distinguish French-Davis. In that case, the court addressed the carrier's failure to process and because of that was required to identify the alleged inaction that triggered the two-year period in which to request a hearing under ORS 656.319(6). The court set forth a detailed explanation of what constituted "inaction," which was defined as the failure to perform a specific, time-sensitive duty. By contrast, in this case, claimant is not alleging a failure to process the claim, but rather is alleging that the employer processed the claim incorrectly by not including supplemental temporary disability in his initial temporary disability payment. In other words, the issue in this case is not a failure to process, as was true in French-Davis, but rather concerns incorrect claim processing. Thus, we are required to determine the date of the alleged "action" (as opposed to "inaction," as was the case in French-Davis) that triggered the two-year period under ORS 656.319(6).
Here, that "action" occurred on February 12, 2003, when the employer allegedly did not correctly include supplemental temporary disability in claimant's temporary disability payment. Because that action triggered the running of the two-year time limitation, we agree with the ALJ that claimant's February 23, 2005 request for hearing was time-barred with respect to the period of temporary disability regarding the initial opening of the claim that commenced in February 2003. Consequently, we affirm the ALJ's order that dismissed claimant's request for hearing as untimely with regard to the temporary disability paid from February 12, 2003 to the initial claim closure in July 2003.1
Claimant also argues that, even assuming that the ALJ properly applied ORS 656.319 with regard to the initial processing of temporary disability in February 2003, a second period of temporary disability began in October 2003 in conjunction with an aggravation claim. Thus, claimant asserts that, because his February 2005 hearing request was filed within two years of that alleged incorrect claim processing, his hearing request was timely. We agree.
In Randall E. Kelley, 54 Van Natta 1645, 1646, on recons, 54 Van Natta 1860 (2002), the claimant suffered a compensable injury on September 20, 1994. He had been paid temporary disability for various periods since that time. On May 21, 2001, the insurer recalculated the claimant's temporary disability and advised him that it intended to...
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