Safeway Stores, Inc. v. Angus
Decision Date | 01 June 2005 |
Citation | 200 Or. App. 94,112 P.3d 474 |
Parties | In the Matter of the Compensation of Robert D. Angus, Claimant. SAFEWAY STORES, INC., Petitioner, v. Robert D. ANGUS, Respondent. |
Court | Oregon Court of Appeals |
Kenneth L. Kleinsmith argued the cause and filed the briefs for appellant. With him on the brief was Radler, Bohy, Replogle & Miller, Portland.
David W. Hittle, Salem, argued the cause and filed the brief for respondent. With him on the brief was Swanson, Lathen, Alexander & McCann.
Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and ARMSTRONG, Judge.
Employer seeks review of an order of the Workers' Compensation Board, asserting that the board erred in concluding that employer knew of claimant's accident within 90 days of its occurrence and that the claimant had thereby satisfied the 90-day notice requirement under ORS 656.265(4)(a) for a timely claim.1 We review the board's legal conclusions for errors of law, ORS 183.482(8)(a), and its findings for substantial evidence, ORS 183.482(8)(c), and affirm.
We have reviewed the record and conclude that the board's findings, which we summarize, are supported by substantial evidence. Claimant lives in West Salem and is an extra-board baker for employer. In that capacity, he is temporarily assigned to work in the bakery departments of different Safeway stores. He receives his assignments from Jacobsen, an administrative assistant in employer's district office who assigns work to claimant and three other employees. In the past, when he was ill or otherwise unable to work, claimant contacted Jacobsen so that she could find a replacement worker. Claimant sometimes contacted the manager at the store where he was assigned when he was unable to work, but he knew that the manager would then have to contact Jacobsen to find a replacement worker. He is reimbursed for mileage when he travels more than 30 miles in each direction from his residence to get to a temporary assignment and, in some cases, is paid for his travel time. Employer has a policy that requires injured workers to report on-the-job injuries to their immediate supervisor. While he was at a particular store, claimant's supervisor was the store manager.
On July 26 or 27, 2001, Jacobsen assigned claimant to work the next week at a store in Beaverton. On July 31, 2001, claimant went to work in Beaverton. On his drive home that day he was injured in a car accident that occurred several blocks from his home. The next day, claimant called Jacobsen and told her that he had been injured in an accident on the way home from work. He also told her that he would be unable to work as a result of the accident. At the time, neither claimant nor Jacobsen believed that claimant was eligible for workers' compensation benefits for his injuries. However, claimant filed a claim in June 2002 for the injuries.
Employer denied the claim, and claimant requested a hearing. At the hearing, employer argued to the administrative law judge (ALJ) that the claim is barred by ORS 656.265. The ALJ disagreed, determined that the claim was compensable, and awarded claimant compensation and attorney fees. Employer appealed to the board, renewing its argument that the claim is barred by ORS 656.265. The board affirmed the ALJ's order. Before us, employer again argues that the claim is barred by ORS 656.265.
We turn to the statute. ORS 656.265(1) provides that "[n]otice 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." The parties agree that claimant did not give employer the notice required by ORS 656.265(1). Claimant's failure to give that notice bars his claim unless he establishes that he gave employer notice of the claim within one year of the accident and employer knew of claimant's injuries within 90 days of them. ORS 656.265(4)(a); Keller v. SAIF, 175 Or.App. 78, 82, 27 P.3d 1064 (2001), rev. den., 333 Or. 260, 39 P.3d 193 (2002). The parties agree that claimant gave employer notice of his claim within a year of the accident but dispute whether employer knew of claimant's injuries within 90 days of them.
An employer knows of an injury within the meaning of ORS 656.265(4)(a) if the employer is aware of facts that would lead a reasonable employer to conclude that the injury could be compensable and that further investigation of the injury is appropriate. Keller, 175 Or.App. at 82-83, 27 P.3d 1064; Argonaut Ins. Co. v. Mock, 95 Or.App. 1, 5, 768 P.2d 401, rev. den., 308 Or. 79, 775 P.2d 322 (1989).
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Colvin v. Industrial Indemnity, 301 Or. 743, 747, 725 P.2d 356 (1986) (emphasis in original; citation omitted).
Employer first contends that Jacobsen did not know that claimant's injuries were work related and therefore employer did not know of claimant's injuries for purposes of ORS 656.265(4)(a). We note that an employer need not know that an injury is compensable in order to satisfy the requirement in ORS 656.265(4)(a) that it have knowledge of an injury. Mock, 95 Or.App. at 5, 768 P.2d 401. The knowledge requirement is met if the employer knew of the injury and had reason to know that it might be compensable. Id. Here, Jacobsen knew that claimant had been injured while driving home from work and that he would be...
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Lopez v. SAIF Corp. (In re Comp. of Lopez), A155791
...set forth in ORS 656.265(4)(a). Although the knowledge of a supervisor will be imputed to the employer, Safeway Stores, Inc. v. Angus , 200 Or.App. 94, 98, 112 P.3d 474 (2005), the board concluded here that what employer knew as a result of Swain's conversation with claimant would not lead ......