Trujillo v. Pacific Safety Supply

• Decision Date: 29 January 2004
• Citation: 336 Or. 349,84 P.3d 119
• Parties: In the Matter of the Compensation of Consuelo Trujillo, Claimant. Consuelo TRUJILLO, Petitioner on Review, v. PACIFIC SAFETY SUPPLY and SAIF Corporation, Respondents on Review. In the Matter of the Compensation of Terry G. Logsdon, Claimant. Terry G. Logsdon, Petitioner on Review, v. SAIF Corporation, Respondent on Review. In the Matter of the Compensation of Cindy M. Mount, Claimant. Cindy M. Mount, Petitioner on Review, v. Department of Consumer and Business Services and SAIF Corporation, Respondents on Review.
• Court: Oregon Supreme Court

84 P.3d 119

336 Or. 349

In the Matter of the Compensation of Consuelo Trujillo, Claimant.

Consuelo TRUJILLO, Petitioner on Review, v. PACIFIC SAFETY SUPPLY and SAIF Corporation, Respondents on Review.

In the Matter of the Compensation of Terry G. Logsdon, Claimant.

Terry G. Logsdon, Petitioner on Review, v. SAIF Corporation, Respondent on Review.

In the Matter of the Compensation of Cindy M. Mount, Claimant.

Cindy M. Mount, Petitioner on Review, v. Department of Consumer and Business Services and SAIF Corporation, Respondents on Review.

(WCB 96-10056, 99-00431, 97-08823; CA A99410, A109321, A103636; SC S49592, S49594, S49645).

Supreme Court of Oregon.

Argued and Submitted September 8, 2003.

Decided January 29, 2004.

Max Rae, Salem, argued the cause and filed the briefs for petitioners on review Trujillo and Logsdon.

Christopher D. Moore, of Malagon, Moore & Jensen, Eugene, argued the cause and filed the brief for petitioner on review Mount.

David L. Runner, Appellate Counsel and Special Assistant Attorney General, Salem, argued the cause and filed the briefs for respondents on review. With him on the briefs for respondents on review Department of Consumer and Business Services and SAIF Corporation (S49645) were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

G. Duff Bloom, Eugene, filed a brief for amici curiae Oregon Trial Lawyers Association, Legal Aid Services of Oregon, Oregon Advocacy Center, and Oregon Law Center.

Before CARSON, Chief Justice, and GILLETTE, DURHAM, RIGGS, De MUNIZ, and BALMER, Justices.¹

GILLETTE, J.

In these three workers' compensation cases, which this court has consolidated for review, claimants assert a constitutional right to present new evidence at a hearing before an administrative law judge (ALJ) of the Workers' Compensation Board (board), on review of a Department of Consumer and Business Services (department) order on reconsideration, notwithstanding a statutory prohibition on the admission of such evidence. In each case, a divided, en banc Court of Appeals ruled, based on this court's decision in Koskela v. Willamette Industries, Inc., 331 Or. 362, 15 P.3d 548 (2000), that claimants have no such constitutional right. Trujillo v. Pacific Safety Supply, 181 Or. App. 302, 45 P.3d 1017 (2002); Logsdon v. SAIF, 181 Or.App. 317, 45 P.3d 990 (2002); Mount v. DCBS, 181 Or.App. 458, 46 P.3d 210 (2002). We allowed review in these cases primarily to address claimants' constitutional arguments. However, for the reasons that follow, we conclude that we are unable to reach those arguments in any of the cases because, in each case, the claimant failed to exhaust his or her administrative remedies. Accordingly, we affirm each of the decisions of the Court of Appeals, albeit for different reasons.

I. FACTS AND PROCEDURAL BACKGROUND

The facts relevant to each of the claimants' challenges are undisputed.

A. Trujillo v. Pacific Safety Supply

Claimant Trujillo compensably injured his neck, shoulders, and chest in October 1995. Trujillo's employer accepted his claim in December 1995. In June 1996, after Trujillo became medically stationary, the insurer issued a notice of closure, awarding Trujillo 16 percent unscheduled disability. A worksheet attached to the notice indicated that claimant's preinjury capability, or "base functional capacity" (BFC), was light and that his post-injury capability, or "residual functional capacity" (RFC), also was light.² That was important, because the characterization of Trujillo's BFC and RFC would affect the amount of compensation that Trujillo could receive for his permanent injury.³

Trujillo requested reconsideration. During the reconsideration process, Trujillo sought to prove that his BFC was heavier than the notice of closure designation of "light." Under the department's rules, BFC is determined by "[t]he highest strength category of the job(s) successfully performed by the worker in the five (5) years prior to the date of injury." OAR 436-035-0310(4)(a).⁴ The strength categories, in turn, are found in the department's "Dictionary of Occupational Titles" (DOT). Id.

Trujillo filled out and submitted to the department a several-page form entitled "Work History." That form asked the claimant to "list all jobs for the last 10 years." Among other things, the form specifically requested job titles, job duties, and dates of employment for all jobs. On that form, Trujillo described his job at the time of the injury, along with the duties of that job. In addition, under a heading "Previous Job," Trujillo stated that he had been a seasonal "canning line worker" from July 1994 until January 1995 and described his duties there as "help with canning line."

Elsewhere on the form, under the heading "Additional Work History Prior to Injury," Trujillo stated, "Other jobs include picking fruits and berries, tending and trimming berries, nursery work including grafting, and harvesting Christmas trees." Trujillo did not provide relevant dates or a specific list of duties for any of those other jobs. In addition to the foregoing, Trujillo submitted an affidavit in which he provided a list of the tasks that he performed in the course of the job that he held when he was injured. Although he specified the types of objects that he was required to lift on the job, along with the weights of those objects, he did not specify the frequency with which he was called upon to perform those tasks, other than to state, "[A]ll work repetitive."

The other evidence before the department on reconsideration was a job analysis of Trujillo's regular position that the employer submitted to Trujillo's doctor for his review and approval for purposes of releasing Trujillo to work. That analysis listed the weights that the job required Trujillo to lift, along with the frequency with which it required Trujillo to perform those tasks.

On reconsideration, the department upheld the notice of closure.

Trujillo requested a hearing. At the hearing, Trujillo requested the opportunity to testify personally to supplement the reconsideration record, claiming that he had a constitutional right to do so. The ALJ denied that request, concluding that ORS 656.283(7) precluded the admission of evidence that was not in the reconsideration record⁵ and rejecting Trujillo's constitutional arguments. Trujillo then made an offer of proof to the effect that he would have testified concerning, among other things, the frequency with which he performed the various lifting requirements of his job at the time of his injury and the duties and time frames for the jobs that he had performed in the five years before the injury.

Based on the written reconsideration record, including Trujillo's affidavit and work history forms, the ALJ increased Trujillo's award to 21 percent permanent partial disability.

Trujillo then petitioned for board review of the ALJ's order. The board affirmed the ALJ's decision to exclude the oral testimony. In addition, as pertinent here, the board reviewed the written reconsideration record and purported to conclude that Trujillo's BFC was "light."⁶ In reaching that conclusion, the board considered only the job that Trujillo held at the time of his injury and the cannery worker job. The cannery worker job, according to the DOT, has a strength rating of "light." The board declined to consider Trujillo's jobs as fruit picker, vine pruner, or Christmas tree farmer, because Trujillo had failed to offer evidence to the department during reconsideration that he had performed any of those jobs within the relevant time frame.

Turning to the job that Trujillo held at the time of his injury, the board began by rejecting Trujillo's contention that that job fell in the DOT category of "Lumber Handler," with a strength rating of "heavy." The basis for the board's decision in that regard was that the DOT description of the duties of the job of "lumber handler" did not match the description of the job duties that Trujillo actually performed, as described in his own affidavit. In the board's view, Trujillo's description of his duties more closely resembled the DOT description of "Production Assembler," which has a strength rating of "light." In that connection, the board observed that Trujillo had presented some evidence that the job required more lifting than is covered by the strength rating "light," but the board discounted that evidence because Trujillo failed to specify during reconsideration the frequency with which the job required him to lift the heavier weights.⁷ In the end, the board concluded that the appropriate "adaptability factor" was identical to that found by the ALJ and agreed that claimant was entitled to 21 percent unscheduled permanent partial disability.

B. Logsdon v. SAIF Corporation

Claimant Logsdon has had ongoing problems with his right knee since 1979. As pertinent to this case, he suffered a compensable injury to his right knee in January 1994, and the insurer accepted his claim. After about 18 months of treatment, the insurer closed the claim by notice of closure in August 1995 and Logsdon ultimately was awarded four percent scheduled permanent disability for loss of function in the right leg. Logsdon continued to seek medical treatment for problems with his right knee and, on May 30, 1996, saw an orthopedist, Dr. Greenleaf, who recommended reopening Logsdon's workers' compensation claim based on aggravation of the January 1994 injury and recommended that Logsdon have total knee replacement surgery. Greenleaf performed that surgery in October 1996.

Meanwhile, the insurer denied the aggravation claim and denied that Logsdon's right knee condition was related to the January 1994 injury. In October 1997, an ALJ found the insurer to be responsible for the claim for aggravation and ordered the insurer to accept it, which it did.

In December 1997, Logsdon saw another physician, Dr. Schieber, for ongoing right knee pain. Logsdon requested referral...