Cigna Insurance Co. (Cigna), on behalf of its insured Reynolds Metals, seeks review of a Workers’ Compensation Board (Board) order assigning it responsibility for claimant’s right shoulder condition. Liberty Mutual (Liberty), which insured Reynolds Metals prior to Cigna, cross-petitions seeking review of the Board’s order assessing a penalty and attorney fees. We review for substantial evidence and errors of law. ORS 183.482(8); ORS 656.298(7). We affirm in part and reverse in part on the petition and affirm on the cross-petition.
Claimant began working for Reynolds Metals in 1967 and stopped working there in November 1991. In 1979, while Liberty insured employer, claimant sought medical treatment from Dr. Manley for right shoulder pain. In a letter to Liberty, Manley diagnosed claimant’s condition as degenerative
Claimant continued working for Reynolds Metals, and he periodically complained of right shoulder ailments. In May 1990, claimant had a sudden onset of right shoulder pain and sought medical treatment. Cigna, employer’s new insurer, accepted the claim as a disabling injury but did not specify what condition it accepted. In 1993, claimant again had a sudden onset of right shoulder pain and sought medical treatment. Manley requested authorization from Cigna for right shoulder surgery. In September 1993, Cigna denied that claimant’s May 1990 injury was either the material or major cause of the proposed surgery. During a deposition of Manley, Cigna and claimant first learned of the 1979 correspondence between Manley and Liberty. Based on this information, Cigna issued a second denial of compensability and also disclaimed responsibility for the right shoulder condition. Claimant then filed a hearing request against Liberty, alleging a de facto denial of the 1979 claim. In response, Liberty formally denied compensability and disclaimed responsibility for claimant’s right shoulder condition. The administrative law judge (ALJ) set aside both compensability denials, assessed attorney fees against both insurers for setting aside the denials, found Cigna responsible, and assessed a penalty against Liberty for its unreasonable processing of the 1979 claim. The Board affirmed.
Both Cigna and Liberty argue that the Board erred in not dismissing the right shoulder claim because it was not timely filed with Liberty and because there was no timely request for a hearing. In addition, Cigna argues that the Board erred in assigning it responsibility for claimant’s right shoulder condition. Liberty argues that the Board erred in assessing a penalty and attorney fees against it.
We first address the insurers’ contention that the claim was not timely filed. In 1979, an occupational disease claim had to be filed within 180 days from the date a worker became disabled or was informed by a physician that he was suffering from an occupational disease. ORS 656.807(1) (1979). 2 Both insurers argue that no claim was filed with Liberty until 1994 and that claimant’s 1994 request for a hearing was also untimely. In support of that argument, insurers rely on ORS 12.010 and ORS 12.140. ORS 12.010 provides:
“Actions shall only be commenced within the periods prescribed in this chapter, after the cause of action shall have accrued, except where a different limitation is prescribed by statute.”
ORS 12.140 provides:
“An. action for any cause not otherwise provided for shall be commenced within 10 years.”
Relying on those statutes, insurers argue that claimant failed to timely request a hearing on Liberty’s de facto denial. We disagree.
Manley’s submission of medical records and his billing constituted a workers’ compensation claim. A claim is any written request for compensation tendered by the injured worker or by someone else on the worker’s behalf. ORS 656.005(6).
See also Safeway Stores, Inc. v. Smith,
Insurers’ argument is further deflated by the fact that ORS 12.140 does not apply to workers’ compensation claims. Instead, the Workers’ Compensation Act is the “complete statement of the parties’ rights and obligations, and they are
sui generis.” Haret v. SAIF,
Next, Cigna argues that the Board erred in assigning it responsibility for claimant’s right shoulder condition because ORS 656.308(1) relieves an employer of responsibility when the employee is injured again. That statute provides, in part:
‘When a worker sustains a compensable injury, the responsible employer shall remain responsible for future compensable medical services and disability relating to the compensable condition unless the worker sustains a new compensable injury involving the same condition.”
Cigna argues that because the Board found that claimant sustained a compensable injury in 1979, while Liberty insured employer, Liberty remains responsible for claimant’s condition. We disagree. ORS 656.308(1) does not apply in this situation. The statute applies only where there is a previously accepted compensable injury. In
SAIF v. Yokum,
“On its face, [ORS 656.308(1)] addresses the issue of when a responsible employer can shift responsibility to a subsequent employer. It begins from the premise that there is an employer that is responsible to pay for a particular compensable condition. There is no responsible employer until there is an accepted claim and a determination of responsibility, if there is more than one potentially responsible employer. Thus, for the statute to be triggered, there must be an accepted claim for the condition, for which some employer is responsible. In an initial claim context, no employer is responsible until responsibility is fixed.”
See also Norstadt v. Murphy Plywood,
Cigna also argues that the Board improperly assigned it responsibility under the last injurious exposure rule (LIER). There are, at least, two aspects of LIER: (1) proof of a compensable claim, and (2) assignment of liability between insurers.
Bracke v. Baza’r,
Claimant first sought medical treatment in 1979, while Liberty insured Reynolds Metals. Therefore, initial responsibility is assigned to Liberty. In order to shift responsibility to Cigna, there must be evidence that claimant’s condition worsened while Cigna insured Reynolds Metals. The problem is that neither the ALJ nor the Board determined whether the medical evidence established that claimant’s shoulder condition worsened. Rather, the ALJ and the Board applied the test discussed in
Beneficiaries of Strametz v. Spectrum Motorwerks,
We turn next to Liberty’s cross-petition for review. Liberty argues that the Board erred in assessing a penalty under ORS 656.262(11) for unreasonable claim processing. Liberty argues that ORS 656.319(6) bars a claim for unreasonable claim processing that is more than two years after the fact. ORS 656.319(6) provides:
“A hearing for failure to process or an allegation that the claim was processed incorrectly shall not be granted unless the request for hearing is filed within two years after the alleged action or inaction occurred.”
That language was enacted by the 1995 Legislature. Or Laws 1995, ch 332, § 39. Generally, the 1995 amendments to the Workers’ Compensation Act were retroactive.
Volk v. America West Airlines,
“The amendments to statutes by this Act and new sections added to ORS chapter 656 by this Act do not extend or shorten the procedural timé limitations with regard to any action on a claim taken prior to the effective date of this Act.”
The requests for hearing filed on Liberty’s denials were filed before the effective date of ORS 656.319(6). At the time of filing, there was no time hmitation on requesting a hearing concerning a penalty before the enactment of ORS 656.319(6). Accordingly, it follows that ORS 656.319(6) shortened a procedural time limit and, thus, cannot apply retroactively.
See Boone v. Wright,
Liberty’s final assignment concerns the assessment of attorney fees under ORS 656.386(1). Liberty concedes that if the 1979 claim was timely then the award of attorney fees was proper. Because we conclude that the Liberty claim was timely, we affirm the award of attorney fees for prevailing on Liberty’s compensability denial.
Reversed and remanded for reconsideration on the petition; affirmed on the cross-petition.
Notes
Manley provided a copy of the letter to employer’s on-site physician. Thus, employer also had knowledge of the 1979 medical treatment.
At that time, ORS 656.807(1) (1979) provided, in part:
“All occupational disease claims shall be void unless a claim is filed * * * within 180 days from the date the claimant becomes disabled or is informed by a physician that he is suffering from an occupational disease.”
ORS 656.283(1) provides, in part:
“Subject to ORS 656.319, any party * * * may at anytime request a hearing on any matter concerning a claim, except matters for which a procedure for resolving the dispute is provided in another statute, including ORS 656.245, 656.248,656.260,656.327 and subsection (2) of this section.”
We recognize the apparent inconsistency concerning LIER. The rule does not always assign liability to the last employer or insurer. The operation of the rule is “somewhat arbitrary.”
Bracke,
There is medical evidence from Manley in the record that claimant’s condition worsened while Cigna insured employer. However, there is also medical evidence in the record indicating that claimant’s condition had not worsened. The Board must resolve this dispute in the first instance.