Swint v. City of Springfield (In re Swint)
| Decision Date | 05 August 2020 |
| Docket Number | A167556 |
| Citation | 305 Or.App. 679,472 P.3d 800 |
| Parties | In the MATTER OF the COMPENSATION OF Justin A. SWINT, Claimant. Justin A. Swint, Petitioner, v. City of Springfield, Respondent. |
| Court | Oregon Court of Appeals |
Christopher D. Moore, Eugene, argued the cause and filed the briefs for petitioner.
Howard R. Nielsen, Beaverton, argued the cause for respondent. Also on the brief was Bohy Conratt, LLP.
Before Lagesen, Presiding Judge, and DeVore, Judge, and Sercombe, Senior Judge.
In this workers’ compensation case, claimant requested a hearing on whether his employer used the wrong rate to calculate his periodic temporary disability compensation, resulting in a series of underpayments that violated the employer's obligations under ORS 656.262(4)(b). After an administrative law judge (ALJ) agreed with claimant that he was entitled to additional compensation, the Workers’ Compensation Board reversed that decision. The board concluded that, because claimant's hearing request was made more than two years after the date of the first payment, it was time-barred under ORS 656.319(6). Claimant seeks judicial review of the board's order, arguing that the board erred in concluding that his request was time-barred under that statute. For the reasons explained below, we conclude that the board's order lacks substantial reason to support its conclusion, and we therefore reverse and remand the order.
The facts are not in dispute, so we draw them from the summary in the board's order and the ALJ's factual findings, which the board adopted. See McDowell v. Employment Dept. , 348 Or. 605, 608, 236 P.3d 722 (2010). Claimant, a police officer for the City of Springfield, suffered a compensable injury in September 2014; he was released to light duty and subsequently returned to modified work later that month. The city accepted his claim and, on October 8, 2014, sent a "Notice of Wage Calculation" letter to claimant.1 The notice advised claimant that his temporary total disability (TTD) rate was calculated as $830.43, based on an average weekly wage (AWW) of $1,245.59, but that the city had elected to provide "wage continuation" in lieu of paying temporary disability benefits. "Wage continuation" refers to a self-insured employer's ability to "pay[ ] to an injured worker who becomes disabled the same wage at the same pay interval that the worker received at the time of injury," which is "deemed timely payment of temporary disability payments pursuant to ORS 656.210 and 656.212 during the time the wage payments are made." ORS 656.262(4)(b). The "Notice of Wage Calculation" explained that the AWW/TTD information was being provided because any work disability award, if determined to be due at the time of closure, would be based upon that wage calculation. The notice further advised claimant that, if he disagreed with the wage calculation, he must immediately notify the city of his disagreement.
In this case, the wage continuation in lieu of temporary disability was the result of an agreement between the city and the police union, the Springfield Police Association. Pursuant to that agreement, the city paid claimant his regular base pay plus incentives (e.g. , contributions to his retirement account, and medical and dental insurance) in two-week intervals; he received his regular base pay for 40 hours a week even if he worked less than 40 hours, but he did not have an opportunity to work overtime.
The first wage-continuation payment was made to claimant on October 10, 2014, for the period of September 21 to October 4, 2014. Payroll information accompanying the check indicates that an hourly rate of $31.14 was used to calculate wages, which was claimant's regular hourly base pay rate. Wage-continuation payments continued to be paid every two weeks until February 28, 2017, when claimant was released to regular work without restrictions.
On April 7, 2017, claimant requested a hearing to challenge the city's processing of his temporary disability benefits. In claimant's view, the wage calculation used by the city had erroneously failed to account for his actual wages, including the overtime that he regularly worked, meaning that he had not been paid "the same wage at the same pay interval that the worker received at the time of injury" as required by ORS 656.262(4)(b).
In response, the city disagreed with claimant's position that the payments violated ORS 656.262(4)(b), arguing that claimant got a "better bargain" from the city by receiving his base pay for reduced hours rather than the hours he worked. However, the city also asserted, as a threshold matter, that claimant's request for a hearing was untimely under ORS 656.319(6). That statute provides that "[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."
The city's timeliness argument was premised on its view that the "alleged action" that triggered the two-year limitation period in ORS 656.319(6) was the notice of wage calculation. The city contended:
Claimant, on the other hand, argued that each payment raised the calculation issue anew, because each payment violated the city's ongoing obligation to pay him the same wage at the same pay interval that he received at the time of injury under its election to provide wage continuation in lieu of disability payments. He argued that,
The ALJ agreed with claimant regarding timeliness, rejecting the city's view that the notice of wage calculation was the "alleged action" for purposes of ORS 656.319(6). The ALJ reasoned that the notice advised claimant of the city's election to provide salary continuation in lieu of temporary disability, but that claimant was not challenging the election. "Rather," the ALJ explained, "claimant is challenging the [city's] failure to pay him the same wage that he received at the time of injury, which is a statutory requirement of providing salary continuation in lieu of temporary disability." "Thus, the claim processing actions being challenged by claimant are the [city's] wage-continuation payments that were made in lieu of paying temporary disability benefits." Because claimant had filed his hearing request within two years of when those alleged underpayments ended in February 2017, the ALJ determined that claimant's request was timely. And, on the merits, the ALJ agreed that claimant had been underpaid, directed the city to pay additional benefits, and assessed attorney fees and penalties.
The city sought board review of the ALJ's decision, arguing, among other contentions, that the ALJ erred in concluding that the hearing request was timely. As it did before the ALJ, the city argued that the "October 8, 2014 letter was the action that triggered the two-year time frame for claimant to request a hearing regarding the average weekly wage and temporary disability rate calculations." Claimant defended the ALJ's ruling, again arguing that each payment involved a new alleged action—or inaction—in failing to pay the statutorily required rate.
The board ultimately rejected the claimant's view and the ALJ's conclusion that each payment involved a new "alleged action," but it also rejected the city's position that the notice of wage calculation was the relevant trigger.2 The board instead ruled that the first payment, not the notice or subsequent payments, was the relevant "alleged action":
The board therefore vacated the ALJ's order and dismissed claimant's request for a hearing.
Claimant seeks judicial review of that order. He argues, as he did before the ALJ and the board, that the "alleged action or inaction" in this case is the city's failure to pay the statutorily required rate—an ongoing processing obligation that was breached within the two-year limitations period. The city, as it did below, disputes that proposition. But the city now hedges, in light of the board's order, about exactly when the "alleged action or inaction" occurred: "Although claimant asserts that each salary check he received was a new separate processing action giving rise to an independent right to request a hearing, the actual action that claimant asserts was allegedly incorrect—calculation of his salary at base wage—occurred either when he was informed by the Notice of Wage Calculation letter, or when he...
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