298 P.3d 38
Or. Ct. App.2013Background
- claimant seeks review of WCB order denying penalties under ORS 656.268(5)(d) and attorney fees under ORS 656.382(1) for de facto refusal to close and alleged unreasonable resistance to payment; board reversed and remanded.
- history spans with suspension order (July 6, 2009), IME scheduling and attendance disputes, and Friedman closing examination (Sept. 24, 2009)
- September 30, 2009 request for closure followed by November 5, 2009 closure notice; reconsideration awarded 35% permanent partial disability on that basis
- board held no penalties or fees existed; court reverses on penalty calculation and remands for further consideration of information sufficiency and suspension order impact
- Walker II standard used by board to evaluate unreasonableness; court finds need for explanation and proper timing of penalties under ORS 656.268(5)(d)
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| How is penalty under ORS 656.268(5)(d) calculated? | Claimant: penalty should be based on compensation 'then due' at time of unreasonable closure. | Employer: no penalty because November 5, 2009 notice shows no compensation due. | Penalty based on amount due at the time of the unreasonable closure, not the later award. |
| Did the suspension order create legitimate doubt about closing timely? | Claimant: suspension did not negate 10-day closure deadline. | Employer: suspension order justified delay and created doubt. | Board failed to show legitimate doubt; remanded to consider information sufficiency independent of suspension. |
| Should the board further analyze whether there was sufficient information to close within 10 days? | Claimant: information was sufficient to close earlier. | Employer: more information needed before closure. | Remand to address whether there was sufficient information to close within 10 days after September 30, 2009. |
Key Cases Cited
- Johnson v. SAIF, 219 Or App 82 (2008) (discusses 'then due' concept and offsets in penalty context)
- State v. Klein, 352 Or 302 (2012) (contextual approach to statutory interpretation of 'due' and penalties)
- Walker II, 252 Or App 489 (2012) (standard for determining 'legitimate doubt' about insurer obligations after suspension/closure issues)
- SAIF v. Ramos, 252 Or App 361 (2012) (guides substantial evidence and legal-comportment review in workers’ comp)