Thornsberry v. SAIF Corp., 81-649

• Decision Date: 12 May 1982
• Docket Number: No. 81-649,81-649
• Citation: 644 P.2d 661,57 Or.App. 413
• Parties: Raymond THORNSBERRY, Appellant, v. SAIF CORPORATION, Respondent. ; CA A21302.
• Court: Oregon Court of Appeals

Page 661

644 P.2d 661

57 Or.App. 413

Raymond THORNSBERRY, Appellant, v. SAIF CORPORATION, Respondent.

No. 81-649; CA A21302.

Court of Appeals of Oregon.

Argued and Submitted Jan. 26, 1982.

Decided May 12, 1982.

Robert K. Udziela, Portland, argued the cause for appellant. With him on the brief was Pozzi, Wilson, Atchison, Kahn & O'Leary, Portland.

Darrell E. Bewley, Appellate Counsel, State Acc. Ins. Fund Corp., Salem, argued the cause and filed brief for respondent.

Before ROBERTS, P. J. Pro Tem., and GILLETTE and YOUNG, JJ.

YOUNG, Judge.

Plaintiff commenced this action in circuit court for a redetermination of an order of the Workers' Compensation Department (Department), which reduced a prior court-adjudicated award of permanent total disability. The circuit court dismissed the complaint on the grounds that the court lacked jurisdiction of the subject matter and that a proceeding pending before the Workers' Compensation Board (Board) between the same parties constituted an election of remedies by plaintiff. Plaintiff appeals, and we affirm.

In 1953, plaintiff sustained an injury which was compensable under the workers' compensation law then in effect. On March 19, 1958, judgment was entered on a jury verdict, awarding plaintiff permanent and total disability. On October 3, 1980, the Department mailed a determination order on reevaluation which terminated the permanent total disability award and awarded permanent partial disability.

On October 23, 1980, plaintiff requested a hearing before the Board to contest the Department's redetermination of his permanent total disability. On January 2, 1981, plaintiff filed a petition for rehearing with the State Accident Insurance Fund (SAIF). The request for a hearing before the Board was pending when this action was filed on March 27, 1981.

Plaintiff contends that he is now entitled to a jury trial. ORS 656.202(2) provides:

"Except as otherwise provided by law, payment of benefits for injuries or deaths under ORS 656.001 to 656.794 shall be continued as authorized, and in the amounts provided for, by the law in force at the time the injury giving rise to the right to compensation occurred." (Emphasis added.)

Jury trials in circuit court were permitted at the time plaintiff was injured. Former ORS 656.288(3) (repealed by Or.Laws 1965, ch. 285, § 95). Claim procedures prior to the effective date of Or.Laws 1965, ch. 285, were retained to the extent that a claimant with a pre-1966 compensable injury could elect to proceed with the law in effect at the time of the injury. Section 43 of the 1965 Act provides:

"(1) Subject to the provisions of subsections (2) to (5) of this section, all proceedings, rights and remedies with respect to injuries that occurred before the fully operative date prescribed by section 97 of this 1965 Act, shall be governed by the law in effect at the time the injury occurred.

"(2) The powers, duties and functions performed by the State Industrial Accident Commission under such law shall be performed by the manager of the department except that the board shall exercise all powers, duties and functions imposed on the commission under ORS 656.278 with respect to claims arising from such injuries.

"(3) When the department makes an order, decision or award under ORS 656.282 pertaining to any claim based on an injury that occurred before the fully operative date prescribed by section 97 of this 1965 Act, the claimant may, in lieu of exercising rehearing and appeal rights under the law in effect at the time of the injury, choose to request a hearing under the provisions of ORS 656.002 to 656.590 as changed by this 1965 Act and subsequent Acts.

"(4) In the event the claimant chooses to proceed under subsection (3) of this section, the rules and procedures contained in ORS 656.002 to 656.590 as changed by this 1965 Act and subsequent Acts shall govern hearings, review by the board, judicial review, aggravation and continuing jurisdiction except that the claimant shall have 60 days from the date on which the notice was mailed to him within which to request a hearing under section 34 of this 1965 Act.

"(5) The copy of the order, decision or award served upon the claimant under ORS 656.282 shall contain a statement informing the claimant of his rights under subsection (3) of this section, the form of the statement to be determined by the department."

A claimant with a pre-1966 compensable injury who elects to have his claim processed under the former law is faced with complications. The complexity is due in part to changes in the agencies and the mechanisms established to administer the law. Prior to 1966, the State Industrial Accident Commission (SIAC) was charged with the administration of the Workmen's Compensation Law. Former ORS 656.410 (amended by Or.Laws 1965, ch. 285, § 54). It had continuing authority to modify or terminate awards of compensation formerly made. Former ORS 656.278 (amended by Or.Laws 1965, ch. 285, § 33). In sum, SIAC served as insurer, administrator and quasi-judicial body for review of claims. By the enactment of the 1965 Act, those powers, except the function of an insurer, were transferred to the Workmen's Compensation Board. See former ORS 656.278, 656.708, 656.726. See also McDowell v. SAIF, 13 Or.App. 389, 391, 510 P.2d 587 (1973). ¹

McDowell inserted a measure of uncertainty when it approved the procedure used there by a claimant with a pre-1966 injury. The claimant was awarded permanent total disability in 1955. In 1971, at the request of SAIF, the Board on its own motion reexamined the extent of claimant's disability. The Board then ordered a reduction of the award to permanent partial disability. The claimant petitioned SAIF for a rehearing of the Board's order and then filed an action against SAIF in circuit court. McDowell held that a claimant could petition SAIF for a rehearing. We now believe that that holding was wrong. There is no sound reason to permit or require a claimant to seek a rehearing before SAIF on a determination order issued by the Department. SAIF's principal function is that of an insurer. It has no quasi-judicial or administrative authority to review determination orders issued by the Department on its own motion. To the extent that McDowell v. SAIF, supra, is inconsistent with this opinion, it is overruled.

Under the law in effect in 1953, a claimant had 60 days from the date of a SIAC order to seek a rehearing before SIAC. A request for rehearing was a prerequisite to an appeal to the circuit court. Former ORS 656.284 (repealed by Or.Laws 1965, ch. 295, § 95). In the present case, the determination order that plaintiff sought to have reviewed and thereby to make it the predicate for a jury...