In the Matter of the Compensation of Rebecca M. Muliro, Claimant. DEPARTMENT OF CONSUMER AND BUSINESS SERVICES, Workers’ Compensation Division; and ComPro, Inc., Respondents on Review, v. Rebecca M. MULIRO, Petitioner on Review, and LIBERTY NORTHWEST INSURANCE CORPORATION; Adams & Gray Home Care - Marquis Home Health; and Assured at Home,
WCB 103496, 1102720; CA A152594; SC S062922
IN THE SUPREME COURT OF THE STATE OF OREGON
June 16, 2016
359 Or 736
NAKAMOTO, J.
En Banc. On review from the Court of Appeals. Submitted on the record on January 12, 2016.
R. Adian Martin, Portland, filed the brief for petitioner on review.
Greg Rios, Assistant Attorney General, Salem, filed the brief for respondent on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.
NAKAMOTO, J.
The decision of the Court of Appeals is affirmed. The order of the Workers’ Compensation Board is reversed, and the case is remanded to the board for further proceedings.*
Case Summary: The Department of Consumer and Business Services (DCBS) sought judicial review of the Workers’ Compensation Board‘s order providing that, under
The decision of the Court of Appeals is affirmed. The order of the board is reversed, and the case is remanded to the board for further proceedings.
NAKAMOTO, J.
Under the Workers’ Compensation Act, an injured worker with more than one employer may be entitled to receive supplemental temporary disability benefits from the Workers’ Benefit Fund, in addition to the disability benefits the worker receives from the employer‘s insurer. The injured worker cannot qualify “unless the insurer * * * receives,” within 30 days of receipt of an initial claim, “notice that the worker was employed in more than one job” at the time of injury.
I. BACKGROUND
We take the historical facts, which are undisputed, from the findings of the Workers’ Compensation Board in its order on review.
At that time, claimant also worked for two other home health employers, and Adams & Gray was aware of that fact. Two coordinators at Adams & Gray responsible for scheduling claimant‘s work hours, claimant‘s supervisors, knew of her secondary employment because claimant would at various times let a supervisor know, when asked to handle a placement, that she was already scheduled by another agency.
Claimant promptly sought workers’ compensation benefits for her injury. She filed a workers’ compensation claim, which Adams & Gray‘s insurer, Liberty Northwest Insurance Corporation (Liberty), received less than a week later. As part of her claim, claimant filled out and signed several workers’ compensation benefits forms that were submitted to Liberty—a Liberty claim form (Form 801) and a Department of Consumer and Business Services (DCBS) “Worker‘s and Physician‘s Report for Workers’ Compensation Claims” form (Form 827). On each form, there was a box above the signature line labeled either “Check here if you are employed w/more than one employer” or “Check here if you have more than one employer.” Claimant did not check the boxes on those forms that would have indicated that she had more than one employer. Form 801 contained Liberty‘s mailing address, telephone number, and fax number, and Form 827 provided a telephone number to call in case the claimant did not “know the name and address of the insurer.”
Claimant gave a recorded statement to a claims investigator less than two weeks after she had filed her claim. Claimant told the investigator that Adams & Gray usually gave her 40 hours of work per week. The investigator did not ask claimant whether she had other employers while working for Adams & Gray, and claimant did not volunteer that information. Within 30 days of filing her claim, neither claimant nor Adams & Gray had informed Liberty that claimant had secondary employment, and Liberty was unaware of that fact.
Approximately nine months after her injury, claimant informed Liberty through counsel that she had had multiple employers at the time of her injury and requested supplemental temporary disability benefits. Liberty elected not to process the claim for supplemental disability benefits, so DCBS, through its assigned processing administrator, ComPro, Inc., did so.1 ComPro denied claimant‘s request on the ground that claimant was ineligible for those benefits because Liberty had not received timely notice of claimant‘s secondary employment, as required by
Subsequently, claimant requested a hearing before the board‘s Hearings Division. Based on Adams & Gray‘s knowledge of claimant‘s secondary employment and the reasoning of an earlier board decision, the administrative law judge (ALJ) concluded that Liberty had received timely notice of claimant‘s secondary employment. The ALJ determined that claimant was eligible for supplemental disability benefits and ordered ComPro to process claimant‘s claim. DCBS and ComPro sought board review of that decision, and the board affirmed the ALJ‘s order. The board concluded that “the ‘notice’ requirement of
The board acknowledged that the express language of the statute provides that notice must be received by the “insurer” and that an “employer (unless it is self-insured) has no express statutory obligation to pass information/knowledge to its insurer or statutory administrator, and no responsibilities under the Director‘s rules for processing supplemental disability claims.” But, the board stated that it is “well settled that, with respect to the processing of claims, notice provided by a
DCBS, with Liberty and Adams & Gray joining, sought judicial review in the Court of Appeals. DCBS argued that, under the express terms of
Claimant petitioned for review in this court, challenging the conclusion that
II. ANALYSIS
The issue presented involves statutory construction, which we resolve by applying familiar principles set out in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), and State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). We attempt to discern the meaning of the statute most likely intended by the legislature that enacted it, examining the text in context, any relevant legislative history, and pertinent rules of interpretation. Gaines, 346 Or at 171-72.
Determining the intended meaning of a statute is a question of law. Bergerson v. Salem-Keizer School District, 341 Or 401, 411, 144 P3d 918 (2006). But, depending on the nature of the statutory terms at issue, an administrative agency‘s construction of a statute nevertheless may be entitled to a measure of deference. See generally Springfield Education Assn. v. School Dist., 290 Or 217, 223, 621 P2d 547 (1980) (summarizing the categorization of statutory terms). Whether the agency‘s construction is entitled to such deference depends on whether the disputed term is exact, inexact, or delegative. Id. Whether legislation is exact, inexact, or delegative is itself a question of statutory construction, requiring us to examine the
A. Supplemental Disability Benefits and the Statute
We begin our analysis with an overview of the supplemental temporary disability benefits and the statute at issue. The Workers’ Benefit Fund (the Fund) pays for special benefits designed to promote full employment and compensation to injured workers. OAR 411-031-0040(10)(c)(B). The Fund is created in the State Treasury, separate and distinct from the General Fund, and is primarily funded by employer assessments, noncomplying employer recoveries, and civil penalties.
One of the special benefits that is paid out of the Fund is the replacement of lost wages for the injured worker‘s secondary employment—that is, multiple-employer supplementary temporary total disability benefits (also known as “supplemental temporary disability benefits,” “supplemental disability benefits,” or “supplemental disability“). See
Temporary total disability compensation is typically based on wages from a single employer. Under
But, if the worker has “more than one job at the time of injury,” the amount of compensation can be based on “all earnings the worker was receiving from all subject employment.”
An injured worker is not entitled to supplemental disability
“unless the insurer, self-insured employer or assigned claims agent for a noncomplying employer receives:
“(A) Within 30 days of receipt of the initial claim, notice that the worker was employed in more than one job with a subject employer at the time of injury; and
“(B) Within 60 days of the date of mailing a request for verification, verifiable documentation of wages from such additional employment.”
Subparagraph (A) is silent as to whether the worker or the employer is responsible for providing notice of the injured worker‘s secondary employment to the insurer. However, DCBS‘s rule, OAR 436-060-0035(6)(b), states that an injured worker is eligible for supplemental disability benefits if “[t]he worker provides notification of a secondary job to the insurer within 30 days of the insurer‘s receipt of the initial claim[.]” DCBS‘s rule expressly places the burden of providing the notice on the worker. That rule also requires a worker to provide notice within a specific timeframe, namely, within 30 days of the insurer‘s receipt of the initial claim.
B. Text and Context of ORS 656.210(2)(b)(A)
On review, claimant reprises the arguments she made before the Court of Appeals. The gravamen of claimant‘s position is that an insured employer‘s knowledge of an injured worker‘s secondary employment at the time of her injury—regardless of how or when that knowledge was acquired—is imputed to the employer‘s insurer for purposes of
We turn first to the text of
As mentioned, to determine the meaning of the terms in the phrase “receives * * * notice” as it is used in
Because the statute does not define the disputed terms, our task is to determine the intended meaning of “receives * * * notice,” applying the ordinary tools of statutory construction. When the legislature has not defined a word or a phrase, we assume, at least initially, that the word or phrase has its “plain, natural, and ordinary” meaning. PGE, 317 Or at 611. We frequently consult dictionary definitions of the terms, on the assumption that, if the legislature did not give the term a specialized definition, the dictionary definition reflects the meaning that the legislature would naturally have intended. State v. Murray, 340 Or 599, 604, 136 P3d 10 (2006). But, when the
We begin with the ordinary meaning of the word “receive.” “Receive” is defined as “to take possession or delivery of * * * <~ a letter>.” Webster‘s Third New Int‘l Dictionary 1894 (unabridged ed 2002). Similarly, The American Heritage Dictionary of the English Language 1467 (5th ed 2011) defines “receive” as “1a. To take or acquire (something given or offered); get or be given: receive a present. b. To be the person who gets (something sent or transmitted): receive an email.” (Emphases in original.) Thus, in ordinary usage, the word “receive” connotes a person getting something sent or transmitted to him or her. The same is true in legal usage. See Black‘s Law Dictionary 1460 (10th ed 2014) (to receive means “[t]o take (something offered, given, sent, etc.); to come into possession of or get from some outside source <to receive presents>“).
The ordinary meaning of the word “notice” can vary from its usage as a legal term of art. Webster‘s, for example, defines “notice” as “a communication of intelligence or of a claim or demand often required by statute or contract and prescribing the manner or form of giving it[.]” Webster‘s at 1544. Similarly, The American Heritage Dictionary of the English Language 1206 (5th ed 2011) defines “notice” as
“3. A written or printed announcement: a notice of sale. 4a. A formal announcement, notification, or warning, especially an announcement of one‘s intention to withdraw from an agreement or leave a job: gave my employer two weeks’ notice; raised the price without notice. b. The condition of being formally warned or notified: put us on notice for chronic lateness.”
(Emphases in original.) Thus, in ordinary usage, “notice” requires or connotes some form of communication. See Wright v. Turner, 354 Or 815, 827, 322 P3d 476 (2014) (undefined terms are assumed to have ordinary meanings).
“Notice,” however, can include constructive or imputed knowledge of a fact when used as a legal term of art. For example, Black‘s defines “notice” as
“1. Legal notification required by law or agreement, or imparted by operation of law as a result of some fact (such as the recording of an instrument); definite legal cognizance, actual or constructive, of an existing right or title * * *. A person has notice of a fact or condition if that person (1) has actual knowledge of it; (2) has received information about it; (3) has reason to know about it; (4) knows about a related fact; or (5) is considered as having been able to ascertain it by checking an official filing or recording.
“2. The condition of being so notified, whether or not actual awareness exists[.]”
Black‘s at 1227. Thus, the ordinary meaning of “notice” does not necessarily apply to that word as it is used in
Claimant‘s position is consistent with “notice” being used in the statute as a legal term that encompasses imputed notice. In our view, however, the legislature‘s use of the term “receives” cuts against claimant‘s proposed interpretation, which permits the knowledge of claimant‘s other employment by supervisors who scheduled her work at Adams & Gray to be imputed to Liberty to satisfy the requirement in
In several ways, the context of
The timeframe specified for notice in the statute lends additional support. For a claimant to be eligible for supplemental disability benefits, the legislature has specified prompt notice of a claimant‘s secondary employment: notice must be given to the designated entity “[w]ithin 30 days of receipt of the initial claim.”
Claimant‘s view of
Although claimant acknowledges that the text of
Claimant employs two statutory provisions,
“(1) Every employer subject to this chapter shall maintain assurance with the Director of the Department of Consumer and Business Services that subject workers of the employer and their beneficiaries will receive compensation for compensable injuries as provided by this chapter and that the employer will perform all duties and pay other obligations required under this chapter, by qualifying:
“(a) As a carrier-insured employer; or
“(b) As a self-insured employer as provided by
ORS 656.407 .”
(Emphasis added.) Claimant focuses on the emphasized part of the provision, contending that
In that regard, claimant notes that an employer has a general obligation to assist its insurer pursuant to a second statute,
We are persuaded that an employer has a duty under Claimant‘s two other contextual arguments lack merit. None of the three Court of Appeals decisions on which claimant and the board have relied sheds light on the proper interpretation of presented in this case. In Anfilofieff and Nix, the reasoning the Court of Appeals employed reveals a basic formula: unreasonable conduct by an employer designed to impede the claims process plus an employer‘s obligation to process claims equals attribution of the employer‘s misconduct to its insurer in certain circumstances. We do not decide the validity of that formula, and we do not consider its applicability to this case, because claimant does not advance that argument, nor could she. Employer misconduct is absent from this case: Adams & Gray promptly forwarded to Liberty claims-related forms that claimant had herself completed without checking boxes to indicate that she had other employers at the time of her injury. The third case, Abbott, arose in a different context and does not assist in the resolution of the question in this case: whether the employer‘s preexisting knowledge of claimant‘s secondary employment was sufficient to satisfy a specific notice requirement in And, claimant‘s argument based on agency law rests on an incorrect legal principle. Liberty, claimant notes, is an agent of Adams & Gray. Claimant next asserts that, as the result of “inverse imputation,” the knowledge of Adams & Gray, the principal, was imputed to Liberty, the agent. Claimant cites no authority for her novel theory, and we know of no court that has recognized “inverse imputation” as a principle of agency law. Knowledge of an agent is imputed to the principal, not the other way around. Under the common law of agency, it is presumed that an agent always communicates to the principal all information that it should communicate within the scope of the agency, “although the agent does not, in fact, inform his principal thereof.” Hogan v. Alum. Lock Shingle Corp., 214 Or 218, 228, 329 P2d 271 (1958). Thus, “notice to an agent is notice to his principal.” State Farm Fire v. Sevier, 272 Or 278, 288, 537 P2d 88 (1975). In sum, the text of The parties also urge us to consider the legislative history of With those principles in mind, we turn to the proffered legislative history of In 2001, the legislature enacted Senate Bill (SB) 485, which incorporated the statutory provision at issue in this case. Or Laws 2001, ch 865, § 3. As introduced, the bill proposed the creation of the supplemental disability benefit and the procedures for obtaining the benefit. During consideration of the bill, Jerry Keene, an appellate attorney specializing in appellate workers’ compensation law, testified that “there‘s * * * language [in Section 3 of SB 485 that] connotes a clear intent to basically set up a raise or waive situation. The worker has the opportunity to bring the fact that they work two jobs to the employer within thirty days of the injury. * * * But they do bear the responsibility to get this information to the insurer in a timely manner.” Tape Recording, Senate Committee on Business, Labor and Economic Development, SB 485, Mar 14, 2001, Tape 49, Side A (statement of Jerry Keene) (emphases added). As the emphasized part of his testimony indicates, Keene explained to the committee that the bill placed the obligation on the worker to provide notice of secondary employment. Keene‘s testimony, as well as the rest of the legislative history, indicates that workers “bear the responsibility” for providing all the information necessary for processing a supplemental disability claim. Id. Keene also stated that diligence is crucial because “once the thirty day window * * * comes and goes,” the opportunity to receive supplemental benefits “will not be there anymore * * * and that was fairly clear in the language [of Section 3].” Id. Claimant emphasizes that Keene also stated that the injured worker has the opportunity to bring the fact that he or she works two jobs to the “employer.” Id. Claimant also flags the testimony of a second nonlegislator witness, Jim Egan, who similarly testified that “all an injured worker would have to do would be to hand his or her pay-stub” from the secondary employer to his or her “employer” or “insurance carrier” for “proof enough that there was another job.” Tape Recording, Senate Committee on Business, Labor and Economic Development, SB 485, Feb 2, 2001, Tape 18, Side A (statement of Jim Egan) (emphasis added). Claimant urges us to conclude that the Keene and Egan testimony demonstrates that the terms employer and insurer are “interchangeable” for purposes of providing notice. We draw a different conclusion, namely, that the proffered testimony of Keene and Egan is consistent with our reading of Accordingly, we reject claimant‘s contention that, when an injured worker does not communicate to the insurer or the employer within 30 days of the initial claim that she or he has multiple employers, despite having the ability to do so, the employer‘s preexisting knowledge, unconnected to the claims process, must be imputed to the insurer. Because claimant did not communicate to Liberty or Adams & Gray that she had secondary employment within 30 days of Liberty‘s receipt of her initial claim, which she could have accomplished by checking the box relating to secondary employment on either of two claims forms she filled out, and Liberty did not otherwise receive actual notice of her secondary employment, the board erred in affirming the ALJ‘s order directing DCBS, through ComPro, to pay claimant supplemental disability. Thus, we affirm the decision of the Court of Appeals and reverse and remand the board‘s order. The decision of the Court of Appeals is affirmed. The order of the Workers’ Compensation Board is reversed, and the case is remanded to the board for further proceedings.C. Legislative History