950 P.2d 325 | Or. Ct. App. | 1997
Lead Opinion
Employer and its insurer seek review of an order of the Workers’ Compensation Board (Board) holding that employer is required to pay spousal death benefits to claimant on the basis of a 1987 determination order that employer failed to appeal. The 1987 determination order required employer to pay benefits to “beneficiaries” of a worker, Kenneth Frymire. Employer and insurer now contend, because claimant was not married to Frymire at the time of his death and thus was not a “beneficiary,” they are not precluded from challenging the extent to which she is entitled to continued benefits under the terms of that order. We agree with the Board that employer and insurer are precluded from challenging claimant’s entitlement to continued spousal death benefits and affirm.
The facts are not in dispute. Claimant once was married to Vernon Lee Marshall. Claimant and Marshall separated. Some time after that, claimant and Kenneth Frymire began living together. Claimant initiated divorce proceedings, but Marshall “disappeared.” Meanwhile, claimant and Frymire had a child and, not long after, were expecting a second. The parties finally located Marshall and, on November 12, 1986, claimant once again initiated divorce proceedings, asking for expedited consideration given the impending delivery of the second child. On November 24,1986, Frymire was killed in an employment-related accident.
Following the accident, employer’s insurer informed claimant that she would be entitled to spousal benefits. Claimant told the insurer that the divorce had not yet become final. Insurer paid spousal benefits anyway. The divorce became final in December 1996, and copies of the dissolution judgment were sent to insurer. Insurer continued paying spousal benefits to claimant.
On February 23, 1987, insurer sent a Form 1502 to the Workers’ Compensation Department indicating that the claim for benefits arising from Frymire’s death is “accepted” and that “[wjidow and dependent benefits [are] being paid.” A determination order followed, ordering insurer to pay “to the beneficiaries” benefits for Frymire’s death. Insurer did
In February 1996, insurer issued a partial denial, on the ground that claimant never was entitled to spousal death benefits. According to insurer, ORS 656.204 requires the payment of spousal support benefits only “[i]f the worker is survived by a spouse,” and, in this case, Frymire and claimant were not married at the time of Frymire’s death. Thus, although claimant survived Frymire, she did not do so as a spouse and is not entitled to benefits.
An administrative law judge (AL J) held that insurer had accepted a claim for spousal death benefits in 1987 and therefore is precluded from denying the claim now. The Board rejected the ALJ’s finding that insurer accepted the claim. It nevertheless held that insurer was precluded from denying the claim, because the 1987 determination order “specifically directed the insurer to pay spousal benefits” to claimant, and insurer failed to appeal that determination order.
On review, employer and insurer contend that the Board erred, because the 1987 determination order does not expressly direct insurer to pay spousal benefits, only that insurer pay benefits to Frymire’s beneficiaries. Because the order did not specify the persons who were entitled to benefits, they argue, they are not precluded now from challenging claimant’s right to receive benefits under the terms of that order. We disagree. In the light of the facts undisputedly known to the insurer and the Workers’ Compensation Division (Division) at the time of the issuance of the 1987 determination order — including the Form 1502 that specifically stated to the Division that insurer was paying spousal benefits to claimant — it cannot reasonably be contended that the reference to “beneficiaries” in the order did not include claimant. The fact that insurer itself continued paying spousal benefits to her for the next nine years bears out the point. Given that insurer failed to appeal that determination order, it is precluded from challenging it now. Messmer v. Deluxe Cabinet Works, 130 Or App 254, 257-58, 881 P2d 180 (1994), rev den 320 Or 507 (1995).
Affirmed.
Dissenting Opinion
dissenting.
Because I believe that the majority’s holding is inconsistent with the applicable statutes and with our case law, I dissent.
During her cohabitation with Frymire, claimant was married to Marshall. That marriage was dissolved after Frymire’s death, on January 3, 1987, and claimant then changed her name from Nevay McManus to Nevay K. Frymire.
In December 1986, insurer began paying spousal and dependent death benefits pursuant to ORS 656.204
“cc: Kenneth D. Frymire
“Widow and dependent benefits being paid.
“Claim originally deferred, now accepted.”
The Form 1503, the determination request, filed with the Department on April 2, 1987, indicates by check-the-box notation that the claim is “accepted,” with payment of medical benefits totaling $3,454. The determination order of April 13,1987, stated:
“The Department is advised that Kenneth D. Frymire was fatally injured while covered under the Oregon Workers’ Compensation Law. The Department orders the insurer to pay, to the beneficiaries, benefits for fatal injury.”
Insurer did not appeal that determination order and paid death benefits to claimant, including spousal benefits and dependent benefits, until February 1996, when it issued the partial denial involved here, on the ground that claimant was not entitled to further spousal death benefits because she was married to Marshall at the time of Frymire’s death. The denial stated that insurer would continue to pay dependent death benefits to Frymire’s children.
An administrative law judge (ALJ) held that, although claimant was not a person entitled to benefits
The Board’s findings are supported by substantial evidence and are also correct as a matter of law. The Form 801 does not indicate acceptance of a claim for spousal death benefits. The Forms 1502 and 1503 report the status of the claim to the Department and cannot be treated as notification to claimant that the claim is accepted. EBI Ins. Co. v. CNA Insurance, 95 Or App 448, 769 P2d 789 (1989).
The Board held, nonetheless, that because insurer did not appeal from the 1987 determination order, which it said had “specifically directed the insurer to pay spousal benefits” to claimant, it was precluded, under the rule stated in Messmer v. Deluxe Cabinet Works, 130 Or App 254, 881 P2d 180, rev den 320 Or 507 (1995), from denying the claim. In that case, we held that, when a determination order includes an award for a condition that has not been accepted, and the insurer fails to request a hearing on the determination order, the insurer’s failure to challenge the determination order on the ground that it includes an award for a noncompensable condition precludes the insurer from contending later that the condition is not part of the compensable claim. Id. at 258.
The Form 1502, on which the majority relies to bolster its conclusion, was merely a status report to the Department and not related to the determinational order. As we have said, it cannot form the basis for an acceptance. EBI Ins. Co. Not even the Board relied on the Form 1502 in support of its finding that the determination order made an award of spousal benefits. It looked merely to the language of the order itself, which, as we have noted, was not specific as to the type of death benefits that were to be paid.
The determination order cannot reasonably be understood to award spousal death benefits. Accordingly, I would hold that insurer’s failure to appeal from the determination order awarding death benefits to Frymire’s “beneficiaries” does not preclude its present denial of a claim for spousal death benefits. I would hold that the Board therefore erred in affirming the ALJ’s order setting aside insurer’s denial of spousal or cohabitant death benefits, and accordingly I dissent.
ORS 656.204 provides, in part:
“If death results from the accidental injury, payments shall be made as follows:
“(1) The cost of burial, including transportation of the body, shall be paid, not to exceed 10 times the average weekly wage in any case.
“(2)(a) If the worker is survived by a spouse, monthly benefits shall be paid in an amount equal of 4.35 times 66-2/3 percent of the average weekly wage to the surviving spouse until remarriage. The payment shall cease at the end of the month in which the remarriage occurs.
“(b) If the worker is survived by a spouse, monthly benefits also shall be paid in the amount equal to 4.35 times 10 percent of the average weekly wage for each child of the deceased until such child becomes 18 years of age.” (Emphasis supplied.)
ORS 656.226 provides:
“In case an unmarried man and an unmarried woman have cohabited in this state as husband and wife for over one year prior to the date of an accidental injury received by one or the other as a subject worker, and children are living as a result of that relation, the surviving cohabitant and the children are entitled to compensation under this chapter the same as if the man and woman had been legally married.”
I agree with the majority’s holding with regard to the effect of 1997 legislative changes to ORS 656.262(10).