SAIF Corp. v. Glubrecht

• Decision Date: 30 September 1998
• Citation: 156 Or.App. 339,967 P.2d 490
• Parties: In the Matter of the Medical Services Dispute. SAIF CORPORATION and Northwest Hills Baptist Church, Petitioners, v. Jack H. GLUBRECHT, Respondent. H96-075; CA A95334. . *
• Court: Oregon Court of Appeals

Page 490

967 P.2d 490

156 Or.App. 339

In the Matter of the Medical Services Dispute SAIF CORPORATION and Northwest Hills Baptist Church, Petitioners, v. Jack H. GLUBRECHT, Respondent.

H96-075; CA A95334.

Court of Appeals of Oregon, In Banc. ^*

Argued and Submitted Sept. 12, 1997.

Resubmitted En banc June 10, 1998.

Decided Sept. 30, 1998.

Michael O. Whitty, Salem, argued the cause and filed the brief for petitioners.

Sean A. Lyell, Portland, argued the cause for respondent. With him on the brief was Bennett Hartman Reynolds & Wiser.

HASELTON, Judge.

Employer and insurer seek review of an order of the Workers' Compensation Division of the Department of Consumer and Business Services (DCBS) determining that home remodeling services are reimbursable medical services under ORS 656.245(1) and were reasonable and necessary in this case. We agree that, in appropriate circumstances, remodeling services are reimbursable medical services and conclude that substantial evidence in this record supports the reasonableness of, and necessity for, those services. Consequently, we affirm.

The following facts are undisputed: Due to a 1982 on-the-job injury, claimant is quadriplegic. In April 1983, insurer remodeled claimant's Corvallis home to accommodate his wheelchair. Contemporaneously, claimant signed an agreement that stated that if he sold his home before the expiration of five years, a certain sum would be retained from the sale to pay for the structural modifications to his new home. In 1986, claimant bought property in West Linn and approached insurer with a request to renegotiate that agreement. Insurer responded that it would not renegotiate and would adhere to the agreement. In June of 1988, after the five-year period had expired, claimant sold his Corvallis home and planned to move to West Linn to live nearer to his family.

However, after claimant sold his home in Corvallis, his relationship with his family members changed so that he decided not to move to West Linn. Instead, claimant purchased a lot in Corvallis on which he planned to build a home. In the meantime, claimant moved into an apartment and, eventually, into a rental house. While planning the new house, claimant asked insurer whether it would be willing to provide funds for the wheelchair-accessible features of his new house, and insurer responded "in general terms" that it would be willing to do so. Claimant estimated that the cost of adding those features would be about $5,000.

Thereafter, in late 1989, claimant changed his mind about building a house in Corvallis. The terrain around the lot he had purchased was hilly and he realized that he would not be able to independently "access" facilities and services. Consequently, in December 1989, claimant bought a house in another, flatter area of Corvallis, which is near shopping facilities and other services that claimant can "access" on his own. The house that claimant bought was not wheelchair accessible when he purchased it.

In March 1990, claimant asked insurer if it would pay to remodel his residence and make it wheelchair accessible. Claimant estimated the cost of the remodeling as $14,288. Thereafter, the parties discussed potential reimbursement for those expenses. ¹ In May 1990, the contractor began remodeling the house. Upon completing the remodeling, claimant increased his request for payment from $14,288 to $24,038, to account for the additional cost of adding a master bedroom that is spacious enough to accommodate a wheelchair and specialized bed. Insurer did not respond to claimant's request. In October 1990, insurer requested review of the dispute by the Director. ²

On behalf of the Director of DCBS, the Medical Review Unit (MRU) reviewed the case. On March 29, 1996, the MRU issued its Proposed and Final Order Concerning a Medical Services Dispute finding that the remodeling of claimant's home was a reasonable and necessary medical service and that the remodeling costs were reasonable. The MRU ordered insurer to reimburse claimant $24,038 for remodeling costs incurred.

Petitioners thereafter requested a contested case hearing. The parties submitted the case on the record and written argument. As is relevant to our review, petitioners argued that: (1) home remodeling costs are not compensable medical services under ORS 656.245(1)(b); (2) the MRU's conclusion that home remodeling costs were "reasonable and necessary" is not supported by substantial evidence in the record; and (3) the MRU's conclusion conflicted with the Department's own administrative rules regarding medical services.

The ALJ affirmed the order of the MRU. The ALJ found, relying on Stoddard v. Credit Thrift Corp., 103 Or.App. 283, 796 P.2d 1249 (1990), that, in appropriate circumstances, remodeling can be a medical service:

"[T]he remodeling services here are * * * of precisely the same quality and character as the services deemed to be compensable services in the current statute, specifically 'crutches,' 'prosthetic appliances,' 'braces' and 'supports.' As noted by WCD and as explained in its order, the home remodeling services will facilitate claimant's physical function in a manner consistent with other prosthetic devices. Consequently, I conclude that remodeling services may be compensable services, if the evidence establishes that the services are reasonable and necessary because they will enable claimant to become more independent and self-sufficient, consistent with the policy set forth in ORS 656.012(1)(c)."

The ALJ also concluded that the remodeling services were reasonable and necessary:

"At the previous hearing before the board, claimant's wife testified that the layout of the new home allowed her husband the opportunity to have contact with the outside world and to interact with others when he was confined to his bed for lengthy periods of up to seven weeks or more. In addition, claimant testified that the move to the new house along with the specific modifications allow him to be more independent and self-sufficient within and outside the home. * * * Moreover, Dr. Moore, who is an expert in physical medicine and rehabilitation, reviewed claimant's case at the director's request. He analyzed every modification and stated without qualification that 'the remodeling as performed was medically necessary, reasonable and appropriate.' There is no persuasive countervailing evidence or contrary opinion in the record."

Finally, the ALJ concluded that the administrative rules petitioners invoked were inapposite.

As a preliminary matter, before we consider the merits, we must address a jurisdictional issue concerning the time within which a petition for review must be filed. The following facts are pertinent to this preliminary issue: The ALJ issued and served its "Proposed and Final Contested Case Hearing Order" on August 28, 1996. The order became final on September 27, 1996. DCBS did not re-serve the parties with the final order. Petitioners filed their petition for judicial review on November 20, 1996.

Petitioners thus petitioned for review more than 60 days after the ALJ issued and served the "Proposed and Final" order that is the object of our review but within 60 days of when that order did, in fact, become final. That timing raises jurisdictional questions which, in turn, implicate the interplay of four statutes. First, ORS 183.480(3) provides:

"No action or suit shall be maintained as to the validity of any agency order except a final order as provided in this section and ORS 183.482 * * *[.]"

Second, ORS 183.464 provides:

"(1) Except as otherwise provided * * *, unless a hearings officer is authorized or required by law or agency rule to issue a final order, the hearings officer shall prepare and serve on the agency and all parties to a contested case hearing a proposed order, including recommended findings of fact and conclusions of law. The proposed order shall become final after the 30th day following the date of service of the proposed order, unless the agency within that period issues an amended order.

"(2) An agency may by rule specify a period of time after which a proposed order will become final that is different from that specified in subsection (1) of this section." (Emphasis added.)

Third, ORS 183.482(1) provides, in part:

"Jurisdiction for judicial review of contested cases is conferred upon the Court of Appeals. Proceedings for review shall be instituted by filing a petition in the Court of Appeals. The petition shall be filed within 60 days only following the date the order upon which the petition is based is served unless otherwise provided by statute. If a petition for rehearing has been filed, then the petition for review shall be filed within 60 days only following the date the order denying the petition for rehearing is served. * * * Date of service shall be the date on which the agency delivered or mailed its order in accordance with ORS 183.470." (Emphasis added.)

Fourth, ORS 183.470 provides, in part:

"In a contested case:

" * * * * *

"(3) The agency shall notify the parties to a proceeding of a final order by delivering or mailing a copy of the order and any accompanying findings and conclusions to each party or, if applicable, the party's attorney of record."

Those statutes are not, in truth, completely consistent. As applied to these circumstances, they could plausibly support any of three divergent, and not entirely satisfying, results.

Under the first construction, where a "proposed and final" order becomes final by virtue of ORS 183.464(1), the petition for judicial review would have to be filed no later than 60 days after the service of the "proposed and final" order. That construction would comport with the general, albeit not conclusive, assumption in ORS 183.482(1) that filing is to occur within 60 days of the service of the order. Under such a construction, we would lack jurisdiction because petitioners here filed more than 60 days after t...