Safeway Stores, Inc. v. Seney

• Decision Date: 17 November 1993
• Citation: 124 Or.App. 450,863 P.2d 528
• Parties: In the Matter of the Compensation of Howard R. Seney, Claimant. SAFEWAY STORES, INC., Petitioner, v. Howard R. SENEY, Respondent. WCB 90-10386; CA A73284.
• Court: Oregon Court of Appeals

Page 528

863 P.2d 528

124 Or.App. 450

In the Matter of the Compensation of Howard R. Seney, Claimant SAFEWAY STORES, INC., Petitioner, v. Howard R. SENEY, Respondent.

WCB 90-10386; CA A73284.

Court of Appeals of Oregon.

Argued and Submitted Sept. 2, 1992.

Decided Nov. 17, 1993.

Karen O'Kasey argued the cause for petitioner. With her on the brief was Schwabe, Williamson & Wyatt.

Michael C. Baxter argued the cause for respondent. With him on the brief was Clayton H. Morrison.

Before RICHARDSON, C.J., and DEITS and DURHAM, JJ.

RICHARDSON, Chief Judge.

Employer seeks review of a Workers' Compensation Board order which affirmed the referee's holding that claimant's shoulder claim was not barred by a previous settlement. ¹ We review for errors of law and substantial evidence, ORS 656.298(6), ORS 183.482(7), (8), and reverse.

Claimant compensably injured his right shoulder in December, 1982, while working as a truck driver for employer. As a result of his injury, he also suffered symptoms in his neck and left shoulder. He filed a claim that was accepted and processed to closure. Because of continued exacerbations of his symptoms, the claim was reopened several times. In May, 1989, a determination order was issued declaring claimant medically stationary and awarding nine percent permanent partial disability and a two percent award for loss of use of his right arm. Claimant timely requested a hearing, arguing that the claim was prematurely closed and that he was entitled to additional temporary and permanent disability benefits.

Over the next several months, claimant and employer engaged in settlement negotiations. One of the issues discussed was the possibility of future aggravation claims. In November, 1989, during the negotiations, claimant injured his left shoulder at work. Claimant's physician diagnosed his symptoms as being a temporary aggravation of the old injury. Claimant's counsel informed employer's counsel of the physician's diagnosis and requested temporary disability benefits. On December 18, employer informed claimant that it believed his aggravation rights had expired and that it would not pay time loss benefits for his November, 1989, injury on the basis of the information it had from his physician. Employer also notified the Board that it was denying the reopening of claimant's claim for time loss benefits. On February 27, 1990, the parties signed and the referee approved a stipulation resolving claimant's appeal of the determination order. The stipulation provided, in part:

"IT IS HEREBY ORDERED that the claimant be and he is hereby awarded additional compensation for 10% unscheduled permanent partial disability equal to 32 degrees for the injury of December 28, 1982, said award amounting to $3,200, and payment therefore to be made in a lump sum, and

" * * * * * "IT IS FURTHER ORDERED that this stipulation resolves all issues which were raised or which could have been raised by either party on or before the date this settlement is approved by a Referee, and

" * * * * *

"IT IS FURTHER ORDERED that claimant's request for hearing be and it is hereby dismissed with prejudice as to all issues which were raised or which could have been raised."

On March 5, 1990, claimant's physician reversed his previous opinion and stated that claimant's November, 1989, episode was in fact a new injury. Claimant requested time loss benefits from employer and, when he did not receive them, he requested a hearing. In June, 1990, employer denied compensability of the claim on the basis of the February settlement agreement. The referee concluded that the stipulation did not bar the new injury claim, because there had not been a "meeting of the minds" regarding the new injury issue....