Timber Town Living v. Dept. of Human Services, 513 P.3d 28

Petitioner Timber Town Living operates a DHS-licensed residential care facility; a resident fell in the dining room and over the next ~48 hours experienced escalating pain, swelling, inability to lift her right foot or stand, and was sent to the hospital on day three and found to have a hip fracture requiring surgery.
DHS investigated, concluded the facility failed to timely assess/intervene after the fall, issued a Notice proposing a $2,500 civil penalty as a Level 4 violation for "serious harm" under ORS 441.731(2)(d)(E), and the ALJ and DHS adopted that determination.
Petitioner did not dispute the underlying violation or factual findings (including that the resident suffered pain and inability to bear weight), but challenged DHS’s legal characterization of the harm as Level 4.
The central legal question was whether a roughly 48-hour loss of physical function (and associated pain) qualifies as a "long-term" loss of function amounting to "serious harm" under ORS 441.731(2)(d)(E).
The majority held DHS misinterpreted the statute, concluding "long-term" is an inexact (not delegative) durational term meant to connote something closer to permanent than transient, and that 48 hours is not "long-term." The case was reversed and remanded.
A concurring/dissenting opinion would have affirmed, emphasizing deference to the agency’s factual findings, the statutory policy protecting residents’ dignity, and disputing preservation and procedural points.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a ~48-hour loss of physical function qualifies as "long-term" loss of function ("serious harm") under ORS 441.731(2)(d)(E)	"Long-term" cannot reasonably mean as short as ~48 hours; statute distinguishes temporary vs long-term/permanent, so 48 hours is temporary/moderate harm	"Long-term" is inexact and could encompass this period; DHS relied on its guidance example analogizing this fact pattern to Level 4	Majority: "long-term" is an inexact statutory term intended to be more like "permanent" than "temporary"; 48-hour loss does not qualify as "long-term." Reversed and remanded.
Whether petitioner’s briefing noncompliance with ORAP 5.45 prevents review (preservation)	Petitioner preserved the claim below; error is discernible despite ORAP defects	DHS notes briefing and preservation defects and argues waiver	Majority: acknowledged ORAP noncompliance but found the claim discernible and preserved, so reached the merits; dissent emphasized procedural shortcomings but would still affirm on merits.

Bergerson v. Salem-Keizer Sch. Dist., 341 Or 401 (2006) (statutory construction is a question of law)
OR-OSHA v. CBI Servs., Inc., 356 Or 577 (2014) (agency deference depends on whether statutory term is exact, inexact, or delegative)
Springfield Educ. Assn. v. School Dist., 290 Or 217 (1980) (classification of statutory terms as exact, inexact, or delegative)
State v. Gaines, 346 Or 160 (2009) (interpret statutes by examining text, context, and legislative history)
Coos Waterkeeper v. Port of Coos Bay, 363 Or 354 (2018) (on review, meaning of inexact terms is interpreted anew without deference)