*1 192 11; Argued May 3, reassigned September submitted resubmitted June reversed; Appeals decision of Compensation the Court of order of the Workers’ Board proceedings September 29, affirmed and case remanded to the Board for further reconsideration denied November In the Matter of the Compensation Allen,
Trina K. Claimant. SAIF CORPORATION Restaurant, Rose’s Respondents Review,
Trina K. ALLEN, Petitioner on Review.
(WCB S40951) 91-09837; A76538; CA SC P2d *2 Karen Stolzberg, Goldberg Mechanic, Portland, & the cause and filed the brief on argued petition reply behalf of on review. With her on the petitioner petition Hooton, Schneider, Denorch, Donald M. Hooton & Galaviz- Stoller, Portland. *3 Runner, General, Salem,
David L. Assistant Attorney With him on the the cause for review. argued respondents General, responses Kulongoski, Attorney were Theodore R. Linder, General, and L. Solicitor Salem. Virginia Harri, Moore, Johnson, & Malagon, Edward Jensen J. amicus curiae Correll, Portland, filed a brief on behalf of Oregon Compensation Attorneys. Workers’
DURHAM, J. and dissented Graber, J., part concurred part J., Carson, J., Gillette, joined. C. filed an in which opinion DURHAM, J. presents
This workers’ case two (1) issues: When the of the Court three-judge panel Appeals a issued a majority concurring and a dis- opinion, opinion, senting 2.570(4), did court with ORS opinion, comply * ** which the “concurrence two requires judges to pro- (2) below, judgment”? nounce Does ORS set out an award of attorney allow fees when an or insurer employer services, denies claim for medical deny but does not expressly of, the compensability for, or its responsibility (1) claimant’s injury condition? We hold: Court (2) with Appeals 2.570(4); complied an allows award of when or insurer services, a claim for denies medical deny but does not expressly of, or its compensability responsibility for, claimant’s injury condition.
Claimant her back injured in 1988 while at employed Her employer’s insurer, Safeco, restaurant. accepted her workers’ claim for the injury.
In claimant went work for a different restau- (SAIF). rant, which was insured SAIF Corporation There- after, claimant back experienced and neck She pain pain. filed an aggravation claim with Safeco and new claim injury with SAIF. agreed insurers that claimant’s 1989 but
compensable disagreed as responsibility. workers’ compensation referee held that Safeco remained for claimant’s lower back responsible condition, but SAIF was responsible her back and neck condition. upper That order was not appealed.
Meanwhile, claimant had moved to Rhode Island.1 She submitted various medical bills to SAIF from providers SAIF Rhode Island. some bills but not others.2 paid *4 Claimant’s SAIF lawyer wrote a letter to on March 14,1991, asking unpaid SAIF four bills that had SAIF
1 By hearing, residing of the date claimant was in Idaho. $11,448.81 14,1991, hadpaidatotal inmedicalpayments As ofMarch SAIF on the claim. 31,1990.3 for making adjustments After
received on October SAIF contended were excessive under Oregon’s charges charges medical fee schedule and for workers’ back condition for which Safeco was related claimant’s 1, 1991, of the bills paid May SAIF one responsible, 1991.4 May 3, two more on claimant filed a form 25,1991,
On July Request checked the boxes on the form: Hearing following “REQUEST MADE A HEARING IS FOR CONCERN- ING ONE OR MORE OF THE REASONS CHECKED BELOW: íjí s{í
£ £ ifc “H MEDICAL SERVICES ORS 656.245 _JX_ ££‡ s-t # - “Q ORS[.] EXPLAIN AND OTHER CITE JL bills; pay medical penalties
Failure to 656.262(10), 656.268, to ORS 656.382.” pursuant “DENIAL,” relating not check the boxes Claimant did “COMPENSABILITY,” or “AGGRAVATION.” Hearing. form Response Request
SAIF filed a medical bills have it, erroneously stated that “[t]he SAIF ’’ box on the SAIF also checked the timely been on a basis. paid “[tjhere no known for an award of basis form stating not check the box assert- fees.” SAIF did penalties/attorney any relating other box affirmed ing that denial should be to compensation. to entitlement as The four bills were follows: Bay Thermography $ 860.00 Medical East MRI, 850.00 P.C. RI-Mass 1,140.00 Diagnostic Lab. Ocean State Chiropractic 427.19 Gate Toll payments were as follows: Those Chiropractic 424.09 $ Toll Gate 5/1/91 MRI, 850.00 P.C. RI-Mass 5/3/91 730.03 Diagnostic Lab. Ocean State 5/3/91 payments is not in issue here. propriety amounts those 14,1991, March after claimant paid medical bills submitted also other SAIF not at issue here. which are
197 unpaid fact, one bill remained at the time SAIF response. respect filed its With to bill, that SAIF contended thermography prior that not was reimbursable without making adjustments authorization.5 Nonetheless, after allegedly charges, paid excessive SAIF fourth and last September medical bill on 23, 1991.6 hearing The referee a convened to determine attorney whether claimant was entitled to fee under ORS 656.386(1), attorney because her instrumental obtain- ing compensation hearing.7 for claimant before the The ref- attorney eree awarded claimant an sentence ORS fee third under the 656.386(1), obtaining “for her efforts payment of medical bills.” The referee found: “It is doubtful paid that the bills would have it been if not had been for attorney’s claimant’s efforts.” appealed
SAIF
fee award to the
(Board).
Compensation
Workers’
Board
The Board affirmed.
sought judicial
SAIF then
review. The Court of
Appeals
reversed the award of
fees under ORS
App
Allen,
SAIF v.
Or
124
timely respond compensation may de Id. 187. He also construed as a denial.” at said: facto Supreme “[T]he ‘[a]n Court has indicated insurer’s 656.262(6)] required by a claim respond [as failure acceptance v. Spectra [n]or is neither denial.’ Johnson (1987). 49,Or P2d Physics, 303 issue that case was whether an insurer’s inaction could be con- acceptance strued as of claim. conclusion inaction I question denial is therefore dictum. does constitute Supreme really whether the Court intended claimants languish obey requires while insurers failed to the law that ” claims in a Id. at 189 deny timely them fashion. accept *6 original). in (emphasis
He also said: view, accept deny
“In failure to my timely insurer’s denial, ought to considered a and that should a claim entitle the * * be claimant to fees under ORS 187. Id. at He that ORS Rossman dissented. asserted
Judge insurer-paid attorney whenever provides Id. at instrumental in obtaining compensation. is lawyer 189-90. We the peti- for review. allowed petitioned
Claimant Appeals. tion decision of Court of and reverse the majority opin- Claimant’s contention is first not, in do Appeals the Court of concurring opinion ion and the 2.570(4). That provides, statute together, satisfy taken in part: transact busi- necessary of is judges
“The three presence Appeals], except such department [ofthe Court of any ness in by any judge. The in chambers may transacted business as be necessary pronounce judges two concurrence judgment.” task is to deter statute, the court’s interpreting Labor v. Bureau PGE legislature. of the
mine the intent (1993). P2d 1143 606, 610-11, 859 Industries, 317 Or the text are in that determination points starting statutes related includes statute; latter context should usage typically Words common the same subject. meaning. Ibid. natural, ordinary their given plain, 2.570(4) suggests The text of ORS that “concur- required only rence” not as to the as to the result reached in a case and leading
reasoning result, to that it because purpose describes the limited for which “concurrence” is required: “necessary pronounce judgment.” it is The term pertinent “concurrence” is not defined in the statutes. “Con- generally “agreement action”; currence” means or union in “agreement design”; opinion: in union “CONSENT.” Dictionary Webster’s Third New International 1993). (unabridged Dictionary ed See also Black’s Law (6th 1990) (same). ed The term defined, “concurrent” is part, agreement, harmony, as accord, “marked or sim- ilarity tendency.” supra, Webster’s, at 472 effect added). (emphasis ordinary meanings Those of “concur- support rence” the inference stated above. — provision context another subsection of relating operation Appeals
the same statute of the Court of — supports provides, also that inference. ORS part: banc, [C]ourt
“When sits in [of Appeals] concurrence majority judges of a necessaiy participating is pronounce judgment, judges but if the participating are equally divided in their view to judgment given, as to be judgment appealed (Emphasis from shall be affirmed.” added.) *7 phrase In that sentence, the word “concurrence” and the judgment given” interchange- as the to “view to are used ably. “judgment” Appeals turn, In the of the Court of is the rights obliga- final determination of as that court to the — (as parties tions of is, the that the result. ORCP 67 A Cf. procedure, judgment used in the rules civil of a is “the final action”). rights parties determination of the in an only requires We conclude that that judges three-judge panel Appeals a the two of of Court of agree Agreement to, in, is, as to the concur the result. required. leading reasons to that result is not judges agreed Here, result, is, con two being Appeals judgment. in the so, curred the That Court complied with ORS 200 parties’ dispute concerning
We turn next the 656.386(1), the fees in statute under which claimant seeks compensation an cases, case. In workers’ award of attor this statutory only pursuant ney fees be made authoriza can Plywood, Forney 628, 632, 297 Or tion. v. Western States (1984); Curry, 504, 510-11, 686 P2d P2d SAIF v. (1984). 656.386(1) provides: a involving injuries “In accidental where claim- all cases Appeals to the Court of finally prevails appeal ant from an order or Supreme for review to the Court petition compensation, the court shall denying decision the claim attorney attorney. a fee to the claimant’s allow reasonable finally in a prevails cases where the claimant rejected such itself, hearing by referee or in a review the board before the attorney then the referee or board shall allow a reasonable obtaining If an is instrumental fee. held, the not hearing and a referee is claimant Attorney pro- allowed.
reasonable fee shall be or self- paid by for in section shall be the insurer vided employer.” insured interpreting
Again,
the court’s task to
statute,
legislature.
Labor
PGE v. Bureau
discern the intent of
supra,
Industries,
The best evidence of the
third sentence — support fee in this case. award no is held Assembly statute Legislative sentence added that previously § ch 1. This court has 1991. Or Laws that sentence.8 construed regarding sentence of ORS the third of an issue We take note third sentence arguments, parties assume In their
is not before us. requires first two Unlike the claim the insurer. a “denial” *8 or expressly denial statute, refer to does not the third sentence sentences rejection by arguments parties, we framed with the of a claim. accordance analyze firstWe the text of the relevant statutes. The 686.386(1) requires attorney third sentence of ORS an fee “[i]f obtaining compen- award an is instrumental hearing by for sation The a claimant and a the referee is not held.” parties right assume that the to fees created predicated sentence is on the existence of “claim for a com- pensation,” phrase appears a which is in the statute’s agree. first sentence. We The term “claimant” in the third sentence of ORS indicates that a “claim” ais prerequisite provides: recovery of a fee award. ORS “ ‘Claim’ means written request compensation from for subject worker or behalf, someone the worker’s or any compensable injury subject which a employer has notice or added.) knowledge.” (Emphasis 656.005(8) provides: “ ‘Compensation’ benefits, includes all including medical services, provided compensable injury subject for a to a worker or the worker’s beneficiaries an insurer or self- employer insured pursuant to this chapter.” (Emphasis added.) disjunctive The term “claim” is defined in the request compensation,” refer to either “a written which request includes a services, for medical “any compensable injury.” phrase The text indicates that the compensation” equally request “claim for refers to a written any compensable injury for medical services and to of which knowledge. an has notice or arguments support
Insurer makes two of its view phrase “denying compensation” the claim for in the injury, first sentence refers to of a denial condition but not request to denial of a written for medical it First, services. phrase claims that the use article “the” in the “the compensation” claim for a reference to the sentence’s introductory phrase, involving inju- “[i]n all cases accidental argues ries.” Insurer that the article “the” was intended to indicate that the claim denies concern that the insurer must injury. compensability responds an Claimant predicate assume but do not decide that denial of claim for is a fee award under the third sentence of ORS argument ignores involving the fact that “cases *9 insurer’s injuries,” commonly both accidental ORS involve in kinds of claims listed in the definition of “claim” ORS 656.005(6). proposition. argues agree We with that She also legislative argument supported that insurer’s the history the insertion of article “the” in ORS behind the
Nothing in or the text context of ORS why appears phrase explains in the under the article “the” legislature the intention of the consideration. Because using phrase clear, “the” in that is not we resort to the article history legislative behind that word. PGE v. Bureau the supra, Industries, 1981, at Prior to 611. Labor compensation.” In referred to “his claim for changed phrasing present legislature to the 1981, the employ gender terminology. Or neutral form an effort § parties evidence, and the ch 25. We find no Laws offer legislature suggest used the article none, any claim context exclude from the fee statute “the” statutory compensation,” for within the is a “claim of those terms. definitions recognize argues statutes the
Insurer also that other compensability dispute of an over the distinction between a compen- injury level of owed on and one over the benefits 656.245(l)(a)9 argues injury. that a It sable cites ORS may, not, need for medical services but denial of a claim injury. compensability dispute the of the over include compen- dispute the between a over The distinction dispute injury sability the condition and a over or However, we is familiar one. claimant’s benefits amount of a fail to see how insurer’s draft supports that distinction the existence of argument. legislature it can has shown particular kinds of address the denial statutes to For intention. when that is its claims for 656.245(2) provides: example, 656.245(l)(a) provides: employer injury, the self-insured every compensable the insurer or “For resulting from provided for conditions medical services cause to be shall recovery process injury or period injury as nature of such for may required after determina- including as requires, such medical services disability.” permanent tion submitting “When the time for a claim under ORS expired, any 656.273 has claim medical services referred for to in this section shall be submitted to the or self- insurer denied, insured If employer. the claim medical services is may request worker submit the board a pursuant to ORS 656.283. the event the worker cannot locate insurer or self-insured if worker employer, is, does not know who the insurer or self-insured or employer if employer exist, the insurer self-insured has ceased to added.) claim shall be (Emphasis submitted director.” legislature made no similar effort to confine ORS to claims in which the insurer dis- putes compensability of an or condition. We legislature’s terminology assume that the choice of the fee purposeful. assumption particularly statute was That rele- legislature because, statute, vant here in the fee used *10 656.005(6) (8). specially terms that it defined in ORS legislature’s special We are bound to followthe defini Compensation tions of used terms in the Workers’ Law. ORS provides: 656.003 where the
“Except
requires,
context otherwise
defini-
given
tions
chapter govern
this
its construction.”
(1994),
SAIF,
Or 225, 233,
v.
319
204 argues reading Insurer that claimant’s of the statute 656.386(2) superfluous. provides: renders ORS That statute paid “In fees shall to be all other cases continue from the claimant’s award of as other- compensation except provided wise in ORS 656.382.” 656.386(2) disagree.
We ORS would still control the payment of in cases in which referee thé awards permanent partial disability for additional OAR438-15-040(1). under ORS and 656.216. We 656.214 See potential purport all cases in do list which ORS payment only would control of fees. We note example that we cite establishes that claimant’s reading of render does not superfluous. argues that court’s have lim
Insurer also
cases
phrase “denying
compensation” in
claim
ited
656.386(1) disputes
compensability
injury or
over the
of an
disputes over
have excluded
the amount of
condition and
disagrees
argues that,
even under the
Claimant
benefits.
qualifies
relies,
fee
insurer
this claim
cases which
award under ORS
assertion,
the latter
if
Because
argument,
dispose
address it
correct, would
of insurer’s
we
doing so,
that our authoritative
first. In
we are mindful
implicate
interpretations
the rule of stare decisis
of statute
part
at
if
into it
of the statute as written
and become
Stephens Bohlman,
344, 350 6,
v.
n
time of enactment.
(1992).
are
this court has
P2d
We also
aware that
apply
dictum
the doctrine
stare decisis to
declined to
Cutright
statutory
cases. See
earlier
construction
(1985)
Weyerhaeuser
702 P2d
*11
Co.,
301,
299 Or
(court
rely
“questionable
that was a
declined to
on dictum
meaning of a
pronouncement” in an
about the
earlier case
statute); Safeway
compensation
repealed
Stores
workers’
656.005(6),
analysis
misstep
context of ORS
its
of the text and
undermines
and that
656.386(1).
govern payment
fees
adopted
out of
has
rules
Board
656.386(2).
subject
438-15-045
See OAR
compensation
that are
in cases
(extent
settlement);
(disputed
disability);
OAR
temporary
438-15-050
claim
OAR
438-15-055(1) (extent
(claim
temporary
disposition agreement); OAR
438-15-052
(attorney
level);
disability
and OAR 438-15-080
permanent
at the Board
or
case).
obtaining
compensation in an own-motion
increased
instrumental
(1953)
Agriculture,
43, 81,
State Bd.
198 Or
“1. Claimant must initiate the neither appeal, because appeal an insurer nor an would from order or denying compensation; decision the claim for “2. The must be from an order decision decision denying, compensation; claim for allowing, rather than issue finally prevail
“3. Claimant must on the compensation.
206 must appeal prevail “[T]he claimant initiate the on the added).
compensability issue.” (emphasis at 611-12 Or argues phrase emphasized Insurer that the means compensation” compensability “claim for must concern the of the claimant’s condition rather than a claim for benefits. appears disagree, emphasized phrase We it because the attempt paraphrase prerequisite was an the third set forth prerequisites above. None of the listed is with inconsistent the here. Board’s fee award We conclude that Shoulders v. does not aid insurer. SAIF following
Insurer draws our attention to the
state-
Forney
Plywood, supra:
ment in
Western States
v.
only claim
for the amount of compensa-
“Claimant’s
was
responsibility
claim. Where
is not
aggravation
tion
on her
due
compensation
and the
the
only question
issue
is
amount of
due, ordinarily attorney
are not authorized under ORS
656.386(1) and
the award under
only
can
recoverablefrom
656.382(2).”
added).12
(emphasis
“ORS appeal claimant did not to the board or denied claims. The from a her claim. Both Appeals denying decision Court that claimant’s condi- the referee and the board concluded only issue on compensation Wherethe compensable. tion was or disabil- the extent appeal is amount of was caused ity, than whether claimant’s condition rather 656.386(1) applicable not the injury, ORS is an industrial 656.388(2) route to the statute and the ORS attorney fee added.)13 (Emphasis court not available.” circuit supra, Plywood, court that ORS Forney held v. States Western had which claimant inapplicable, order from because the Board was any compensation, We are unable to discern appealed not denied it. awarded full had holding. The statement quoted and the court’s between statement connection statutory any any authority, or consideration unaccompanied citation (8). “compensation” in ORS definitions of “claim” SAIF, supra, quoted in Short v. emphasized portion the last sentence Plywood, above. The Forney discussed States Western the statement is similar to SAIF, holding in Short v. relationship court’s question bears no clause denied, granted, Board had not inapplicable, because “claim,” statutory analyze definition court did claim. The statement, listed authority the court for the any As in ORS words analyzing Forney
After
the statements in
Short,
notwithstanding
which
relies,
insurer
we
that,
conclude
they
they
inappli
our concerns about whether
cable here.
correct,
are
are
They purport
apply
only
“[w]here
compen
appeal
sation issue on
is the amount of
or the
disability,
extent of
rather than whether the claimant’s condi
*13
by
injury.”
SAIF,
tion was caused
an industrial
Short v.
supra,
below,
We turn to the Board’s that, conclusion on this response record, insurer’s to the claim was a denial. Insurer argues accepted question that whether it or denied a claim is a denial, of fact and that its conduct here is not a de facto otherwise. 656.262(6) provides, part: ORS “Written notice acceptance or denial of the claim shall be furnished by to the claimant the insurer or self-insured within days after the employer has notice or of the knowledge claim.” adopted 436-60-140(3),
The Board has OAR which restates the substance of the first sentence of ORS 656.262(6). provides: The rule give
“The insurer shall the claimant written notice of (90) acceptance ninety or denial of a claim within days of the employer’s knowledge notice or of a claim.” give required by did
Insurer
the notice
the stat-
paid
Instead,
ute and
bills,
rule.
it
some
but not others. When
requested
hearing
unpaid
claimant
on the
bills, insurer
court,
Ohlig
three
of this
citation
decisions
Shoulders and a
and Cavins. As
“cf.”
above,
authority
discussed
decisions
none
those
statement. The court
Appeals,
also cited three decisions of the Court of
none of which was reviewed
rejection
Finally,
legislature’s
court
of a bill in
that would
court.
cited
if
have authorized a fee award
a claimant obtained an increase
the extent of
SAIF,
permanent disability.
supra,
legislature’s
n
Short v.
‘ contends, review, untimely ‘SAIF that this case involves than a denial or a ‘de facto’ medical processing, rather denial of However, we find at least services. one of claimant’s medical was in ‘de facto’ at the services claims denied status hearing, time as SAIF requested accepted claimant had not knowledge denied claim within 90 of notice or days 656.262(6). Moreover, paid claim. SAIF had previously several of bills find no claimant’s medical services but we indication in record intended claimant’s that SAIF Rather, August 30,1991 response last bill. SAIF’s to claimant’s request for stated that claimant’s ‘medical bills have ” timely paid been on a basis.’ response Board’s determination insurer’s meaning
to the claim is a denial within the of ORS law, is a not a of fact. we Accordingly, conclusion finding review the conclusion for error law.14 Board’s (8) provide: *14 “(7) record, a contested be confined the court Review of case shall judgment agency any issue of fact or shall not substitute its for that of as to pro- disputed allegations irregularities in agency In the case of of discretion. which, agency proved, not in the record if would cedure before the shown remand, may Appeals allegations refer the to a warrant reversal or Court findings upon appointed by of fact the court to take evidence make Master agency further action if it finds that them. The remand the order for court shall may proceedings of the action have either the fairness of the or the correctness prescribed impaired by procedure error or a to follow been a material failure procedure. “ (8)(a) affirm, may remand If the court finds The court reverse or the order. erroneously interpreted provision a agency a of law and that correct that the interpretation compels particular has action, it shall:
“(A) order; modify or or Set aside “(B) agency under a correct case to for further action Remand the interpretation provision of law. of the “(b) agency’s agency remand if it finds shall the order The court be: exercise of discretion
“(A)
law;
range
delegated
agency
Outside the
discretion
“(B)
rule,
position,
officially
agency
agency
with an
stated
Inconsistent
agency;
inconsistency
explained by
agency
not
prior
practice, if the
or a
“(C)
statutory provision.
in violation of a constitutional
Otherwise
‘‘(c)
the order is
the order if it finds that
shall set aside or remand
The court
supported by
evidence exists
in the record. Substantial
substantial evidence
whole,
permit
record,
as
support
finding
when
viewed
would
of fact
finding.”
person to make that
reasonable
No statute or rule
cited
the parties or discovered
by us defines “denial” for
purposes
In
the Board’s
reviewing
construction and
application
“denial,”
term
we follow the methodology described in
Springfield Education
School Dist.,
Assn. v.
217, 233,
290 Or
England
(1980).
See
v. Thunderbird, 315 Or
preted the dispositive question of law on review, under ORS 183.482(8)(a), agency
“whether the
legislative
action is within the
policy
which inheres in the statutory
agency
term. An
interpreta-
may
given
tion
an appropriate degree of assumptive
15Springfield
statutory
describes the three classes of
terms as follows:
*15
“1.)
precise meaning,
parlance,
Terms of
whether of common or technical
requiring only factfinding by
agency
judicial
the
and
review for substantial
evidence;
“2.)
require agency interpretation
judicial
Inexact terms which
and
review
consistency
legislative policy;
with
and
“3.)
delegation
legislative
require
policy
of
Terms
which
determination
agency
judicial
policy
delegation.”
and
review of whether that
is within the
validity agency upon qualifications of expertise or if we infer that it has based or its of experience application its because of personnel deference, however, Judicial varying the statute to facts. If inter- unreasoning. or a statute must be not automatic to the facts of a con- applicability to determine its preted case, then, necessary agency express for the tested it is order, degree appropriate magnitude to the or its to the case, demonstrat- reasoning of the contested its complexity policy to advance the embodied ing tendency of the order reasoning will enable the Explicit in the words of the statute. degree of give appropriate judicial court on review Educa- agency interpretation.” Springfield credence to Dist., at 227-28. supra, 290 Or tion Assn. School whether in order to decide We must interpret which the legislative policy Board’s action “coincides with of the statute.” Id. at 228. in the meaning inheres are statute, words legislature’s construing we words Ordinarily, give evidence of its intention. the best natural, ordinary meaning. common their usage plain, Industries, at 611. supra, Labor and PGE v. Bureau of follows: the word “denial” as dictionary defines rejection to, grant, assent or sanction: “1. refusal to * * * 2a. claimed, or felt to be due something requested, statement, charge, imputa- truth of a refusal to admit the ** Dictionary Third New International Webster’s tion 1993). (unabridged analysis, consider, at the first level of alsoWe other issue, including at the statutory provision context of (9), 656.262(1), (2), (8), the same statute. provisions (10) (a) provide: “(1) compensation providing of claims and Processing self- the insurer or responsibility shall be the for a worker their insurers shall assist employers All employer. insured chapter. in this required as processing claims “(2) chapter shall due under entitled directly person promptly paid periodically, knowledge receiving notice employer’s thereto upon is denied claim, right where the except employer. the insurer or self-insured *{ ¤ «{» »¡s í í ÍJ»
“ (8) any duly If an insurer or other agent of on record with the Director of authorized such employer purpose, the of Department
the Consumer and Business Services denies a denial, claim for written notice of such compensation, stating denial, informing the reason for the of the worker the hearing rights Claim Expedited Service and of under ORS 656.283, given A shall be to the claimant. ofthe copy notice of be denial shall mailed the director and to the employer by the may request hearing insurer. The worker a pursuant 656.319.[16] ORS
“ (9) Merely paying or providing compensation shall not be of acceptance considered a claim or an admission of liability, nor acceptance shall mere of such compensation be of right question considered waiver the amount thereof.
“(10)(a) If the or insurer self-insured employer unrea- delays sonably unreasonably or refuses to pay compensation, or unreasonably delays acceptance claim, or denial of a insurer or self-insured employer shall be liable for an addi- tional up amount to 25 of percent then amounts due. Notwithstanding any provision other chapter, jurisdiction director shall have exclusive proceedings over regarding solely the payment assessment and of the addi- tional amount described in this subsection. The addi- entire tional paid amount shall be to the worker if the worker is not represented by If attorney. an the worker is represented by an attorney, the worker shall paid be one-half the additional amount and the worker’s shall receive one-half the amount, additional lieu fee. The director’s action and review thereof shall subject to ORS 183.310 to 183.550 and such other rules procedural as the director may prescribe.”
In the text of 656.262(6), has legislature afforded two to an or options insurer who receives notice knowledge may claim for insurer compensation. The or accept deny the claim. The text provide does option insurer with the to take no or position acceptance 436-60-140(6), implement adopted To Board has OAR provides: which comply “The of denial shall with the rules of Practice and Procedure notice Compensation
for Contested Cases under the Workers’ Law and shall: “(a) legal denial; Specify for the the factual reasons “(b) Expedited worker’s Claim Service and of the Inform the worker right ato under ORS 656.283.” of the claim. The text the Board’s conclusion supports denial insurer’s conduct was denial. also supports context Board’s result. ORS makes the insurer self- “[processing of claims and employer responsible insured for worker.” ORS obli- compensation providing under the insurer due gates entitled thereto upon the law “to the person employer’s where the claim, except of a knowledge notice or receiving the insurer or denied right self-insured *17 added.) ORS cer- promotes employer.” (Emphasis and the execution of those tainty promptness17 respon- the insurer by requiring provide sibilities * * * “[wjritten or denial of the claim acceptance notice of knowledge has notice or of days employer within 90 after the the claim.” include the written the insurer to requires
ORS the denial and information about notice the reason for the The insurer hearing rights under ORS 656.283.18 claimant’s 656.012(2) provides, part: OES objectives Compensa- findings, consequence of the Workers’ “In of these the to be as follows: tion Law are declared “(a) fault, sure, complete prompt regardless medical provide, of and To fair, injured adequate benefits and reasonable income treatment for workers and injured dependents; workers and their “(b) delivery system just of medical provide and administrative for To a fair injured litigation and eliminates workers that reduces and financial benefits to greatest compensation proceedings, extent adversary to the nature of the the practicable; “(c) economically injured physically a self- To worker restore the prac- greatest extent expeditious and to the in an manner sufficient status ticabler.]” provides, as material: ORS 656.283 (2) “(1) 656.319, any party or Subject and ORS of this section to subsection concerning a hearing any question any request may on the at time director claim. “(2) self-insured action of the insurer or dissatisfied with an If a worker is apply assistance, to the the worker must first employer regarding vocational hearing requesting a of the matter before for review director administrative day 60th after application be made not later than the must that matter. Such complete the review shall of action. director worker was notified date the time, otherwise worker’s dissatisfaction unless the within a reasonable only may if it: be modified decision of the director resolved. The
“(a) rule; Violates a statute must the notice of denial to the claimant and mail give copies and the of the of Department Director Con- sumer and Business Services. key procedural component
The notice a denial is a the claim adjudication entitles a claim- system. ant who receives notice of a denial to under request hearing ORS 656.283. claimant or the director must request within the hearing specified time limits 656.319.19 Because notice of denial includes the insurer’s reasons denial, Board, claimant, it enables the the director determine the scope any issues and the disputed proper forum for resolution of those For example, issues. insurer’s assertion that the or condition is not related underlying injury to work would ordinarily lead to a under hearing 656.283(1). A denial of requires vocational assistance dissat- isfied claimant to apply to director for administrative review
“(b) statutory authority agency; Exceeds “(c) upon procedure; Was made unlawful “(d) clearly Was characterized abuse of discretion or unwarranted exercise discretion. “(3) request hearing may any writing, signed by A made or on party including party, behalf of the requesting the address hearing, desired, stating that a and mailed to the board. *18 “(4) hearing request The shall board refer the for to a referee for deter- expeditiously possible. hearing mination as as The be shall scheduled for a date days receipt by request hearing. not more than 90 after the board of the for The hearing postponed except extraordinary shall be beyond not circumstances requesting party.” the control of the 19 provides, ORS 656.319 as material: “(1) respect objection by With to claimant to denial of a claim for 656.262,
compensation hearing granted under ORS thereon shall not be and shall the claim not enforceable unless: “(a) request hearing day A for the the filed later than 60th after denial; claimant was notified of the or “(b) request day of is filed not later than the 180th after notification good hearing there for denial the claimant establishes at a cause day request by failure to the file the 60th after notification of denial. “(2) (1) section, Notwithstanding hearing of this shall be subsection (1) request granted specified even if a therefor is filed after the time in subsection competency lack the of this section if claimant can show of mental to file request period filing within that shall not be time. The for under subsection years by competency, extended more than five lack of mental nor shall it extend ’’ any longer regains competency. year case than one after the claimant mental 656.283(2).20 A under ORS denial raises an of issue 656.307(1)21 covered ORS responsibility by requires to director who shall the claim. these exam- designate others, ples, probably compliance by insurers with the duty timely to of statutory provide written notice a denial information to important parties, furnishes affected Board, and director that them permits guide dispute body within decision-making compensation proper must parties narrows the issues on which the system, prepare of claims litigation, expedites through disposition or settlement. The underscored legislature insurer liable importance compliance making if the money worker for an additional amount of insurer or denial of a claim.” ORS “unreasonably delays acceptance 656.262(10)(a). was late in argument, merely paying
Insurer’s it bills, its to furnish written disregards statutory obligation or days. denial a claim within acceptance notice of also argument ignores importance That an insurer’s adjudication compliance process claim the Board has signifi- Without obligation. question, with that statutes, such as ORS in applying procedural cant experience it, and knows proceedings to claim before can result the administrative effects that deleterious accept disregards duty timely insurer its when an scheme claim. deny we turn to the mind, considerations With those The Board denied this claim. that insurer Board’s conclusion 18, supra. note is set forth at text of 656.307(1) provides: regarding: “Where is an issue there “(a) employers of a claimant subject is the true Which of several
worker; ‘‘ (b) responsible employer a certain than one insurer of Which of more worker; payment to a “(c) employers their insurers or more Responsibility two between injuries; or more accidental payment for two or involving
“(d) employers, employment two or more Joint *19 claim, employers order, if the shall, by designate shall who director “the Payments compensable. shall is otherwise the claim admit and insurers 656.262(4).” any provided in ORS as begin in event “de the term facto denial” to insurer’s applied failure to deny accept required by the claim within 90 as days, 656.262(6). The application Board’s statute coincides with the in statute, embodied to legislative policy, compel insurers to declare whether timely they accept claims. deny construction of the Board’s statute tends to advance the legislature’s generally expressed policies promoting of medical benefits prompt delivery to workers, injured just and a fair system administrative that reduces litigation eliminates the nature of adversary compensation proceedings greatest extent practicable. 656.012(2)(a)-(c). also Board drew attention insurer’s response for a in request which insurer said that hearing, claimant’s “medical bills have been basis.” paid timely The Board was entitled to construe that statement as denial because, in it context, asserted that claimant was not entitled on his claim for medical anything unpaid hills. relies on Johnson v. Spectra Physics, supra,
Insurer
but that case
not
aid insurer. The issue in Johnson does
whether an
condition,
insurer’s notice or
knowledge of
coupled with the passage
days,
of 60
could
serve
an
as
acceptance
condition under
the rule in
(1983).
SAIF,
Bauman
“an regarding aspect insurer’s silence one of a claim acceptance neither nor aspect denial of that of the claim. argue Silence is neutral. One that if an could insurer’s silence regarding implies anything, imply a condition it would denial, acceptance.” supra, not Johnson v. Spectra Physics, Or at 55. here. Johnson concerned the That inapplicable passage requirements application acceptance trigger the Bauman backup denial rule. It did concern the for a denial of a claim for as requirements compensation, Johnson about reason, this case. For that the statement denial is dictum. whether an insurer’s silence can constitute We import do note that the Board’s result here carries Johnson, quoted above, this court’s last sentence its Johnson, the issue logical Furthermore, conclusion. unlike *20 here only did not concern the effect of insurer’s silence in to claim. response a
The Board’s conclusion that insurer
the
denied
claim
is
the text and context of ORS
supported
and is
legislative
consistent with the
by that
policy exemplified
statute,
the other statutes cited above that concern claim
and
adjudication,
the legislature’s generally expressed objec-
tives
Workers’
for the
Law.
the
Compensation
Because
Board’s action is within the legislative policy behind ORS
Education
656.262(6),
the
did not
Springfield
Board
err.22
Dist.,
Assn. v. School
supra,
purposes the medical bills because it asserted that was refusing pay them or because it not intended to of decision of claimant’s Claimant injury. the challenge compensability deny failed the responds timely accept that insurer clear that it was law, as and failed to make claim, required of to contest the claimant’s going compensability injury. not all conduct left it free contest She that insurer’s argues claim, of compensability of the aspects including Insurer sought she medical services. injury for which for an a benefit claim is an opportunity that acknowledges claimant condition for which the deny injury insurer insurer refuses that, unless the argues benefits but seeks the condition is not compensable, on the basis that payment 656.386(1). of ORS meaning there no denial within in from an insurer argument We addressed similar Ohlig, accepted it. In the insurer Ohlig rejected and case later, the claimant’s years in Two ankle 1975. injury condition, for back request surgery submitted lawyer at injury. it connected to the that was asserting 436-83-125, rule, pro- OAR A administrative Board 588-89. vided, part: in
in ORS procedures concurring acceptance formal denial We legislature did not and in do are involved dissenting). The hold, Nothing as under ORS intend to in the dissent in the regarding revocation dissent’s case. Board’s order or apply 656.262(6). asserts, argument its definition results this acceptance and issuance insurer Or at 230-31 opinion “claim,” from its flawed “revoked” its suggests (Graber, 656.005(6), premise prior a J., shall partial partic- notice denial set forth with “Every ularity injury or for which responsibility condition legal denied and the factual and reasons therefor. notice shall form for in provided [OAR 436-183-120. Hearing rights appeal procedures pro- and and shall be as (7), vided for claim denials ORS 656.319 and these Rules.” rule, violation of the the insurer no of a gave notice denial the back condition and the factual reasons there- legal
for. When the claimant on the claim prevailed hack sought under ORS insurer asserted that the statute was it inapplicable, because had never denied the back condition and had writing accepted the ankle condition This court writing. rejected that argu- *21 ment, the court’s the effect of the analysis insurer’s failure to make clear its denying reason for the back condition is relevant This here. court said:
“The statutes to which reference is made in the [administrative] rule concern the denial of claims and the procedure for a claimant to contest a denial. The reference to OAR 436-83-120 refers to the Board rule which fleshes out statutory of employers duties who would deny claims. employer
“The here failed to follow the administrative rule fact despite lawyer the worker’s filed a for the claim back condition and the employer refused to accept respon- ** * sibility Certainly for that condition. employer should be in no better position give to the written failure notice required denial than by the rule would have been the case had there been compliance.” Ohlig v. FMC Marine & added). Rail Equipment, supra, 291 597 (emphasis Or at Following we decline insurer reasoning, to allow take its unlawful failure to advantage timely accept or deny the claim. Unless an makes its insurer clear that denial condition, does not of the or dispute compensability injury claimant remains burden to subject statutory prove that the Late injury compensable. payment ORS 656.266. medical bills did the claim or not operate accept policy admit In the of the liability. light ORS from 656.262(6), profit insurer to underlying permitting the basis for its refusal its ambivalence concerning claim in court in would, the words of this Ohlig, com- and involve the worker’s form over substance
“elevate Id. at 595. gymnastics.” in semantic system pensation not conceded insurer’s denial was compensability Because from the contested issue. It follows it remained a here, not confine the issue on the insurer’s denial did foregoing disabil- or the extent of amount of compensation claim the of claimant’s or rather than the ity, compensability meaning quoted of the statements condition, within the and SAIF Short. Plywood v. Western States Forney above in concluding the Board erred does not argue Insurer com- obtaining counsel was instrumental that claimant’s 656.386(1). We con- of ORS meaning within the pensation, compen- in obtaining instrumental lawyer clude within claim for compensation, a denied sation and overcame 656.386(1), doing so. meaning of ORS erred in the Board insurer contends that Finally, insurer’s 656.386(1), because a fee under awarding compensa- delay paying to unreasonable conduct amounts receive one-half only can lawyer which claimant’s tion, for fee. in lieu of an under ORS penalty 656.262(10) provides: “(a) employer unreason- self-insured If insurer or pay compensation, refuses to unreasonably ably delays claim, of a or denial delays acceptance unreasonably for an addi- shall be liable insurer or self-insured due. amounts then of the percent to 25 up tional amount chapter, of this Notwithstanding any provision other proceedings over jurisdiction have exclusive director shall addi- payment solely the assessment regarding *22 addi- The entire in subsection. described tional amount if worker is worker paid shall tional amount represented If the worker attorney. an represented additional one-half the paid shall be attorney, the worker an receive one-half shall attorney and the worker’s amount director’s attorney fee. The amount, in lieu of additional to subject 183.310 to ORS shall be review thereof action and may as the director rules and such other procedural 183.550 prescribe.
‘‘ jurisdic- (b) exclusive does not have the director When payment the assessment regarding proceedings tion over subsection, in this described amount the additional shall subsection in this attorney provided provision proceeding.” in the other apply 656.386(1) 656.262(10) indi-
The text of ORS subjects. address distinct ORS those statutes cates that attorney requires fee award when a a reasonable compensation, prevails over a denial of a claim for claimant lawyer judicial review, if or administrative either on obtaining compensation prior hearing. to a instrumental makes an insurer or self-insured unreasonably delay penalty parties if those liable for unreasonably unreasonably pay compensation, or refuse to represented delay acceptance If worker or denial of a claim. lawyer penalty acts, one of those unreasonable seeks a penalty “in lieu of an of the additional receives one-half 656.262(10)(a). attorney fee.” attorney awarded a reasonable fee under The Board lawyer claimant’s was instrumental because prior hearing. obtaining compensation to a Claimant did delay in that fee as a sanction for an unreasonable not seek delay acceptance paying compensation, or an unreasonable appears, examination of or denial of his claim. It under our statutes, the text of the two that the claim for reasonable ‘ phrase ‘in lieu of an fees is unrelated to 656.262(10)(a). reading appears Although that to fee” in ORS statutes, be the most reasonable construction Accordingly, proceed legislative intention is not clear. we legislative history behind two an examination statutes. legislature to ORS added the third sentence permit recovery of a fee where 1991 to agrees pay compensation claim,
insurer denies the but hearing. legislature prior intended the amendment App holding OSCI, 78, 810 P2d reverse the Jones (1991), App which ruled 230, P2d 558 1318, mod 108 Or 656.386(1), the claim of ORS that under the former version agrees prevail if the insurer in the ant does not compensation, hearing. 1991, Or Laws even on the eve of the § Recording, Tape on Labor Senate Committee ch see 312, 1; Moore) (SB Tape 540), (testimony of Chris 20, 1991, March Recording, 27, Tape Debate, March Floor Senate A; Side Kerans) (statement Tape A; 50, Side of Senator Grattan May Tape Recording, 29,1991, Labor, House Committee Mannix) (remarks Tape Representative 154, Side B. Kevin *23 Nothing legislative history behind the 1991 amend- 656.386(1) ment to ORS suggests it was linked to the 656.262(10) (a) subject sanctions under ORS for unreason- able insurer conduct.
The legislature added the words “in lieu of an attor- 656.262(10)(a) fee” ney to ORS in 1990. Or Laws 1990 (Spec Sess), 2, § ch 15. Prior to the amendment, two statutes addressed the problem of an insurer’s refusal or resistance to 656.382(1) payment At compensation. time, provided:
“If an insurer or self-insured employer refuses to pay referee, due under an order of a court, board or or otherwise unreasonably resists the payment of compensa- tion, employer or insurer shall pay to the claimant or the attorney for the claimant a attorney reasonable fee as pro- (2) vided in subsection of this section. To the extent an employer fees, has caused the insurer charged to be such employer may charged such be with those fees.” 656.262(10).23 The other statute was ORS As a result of those two statutes, claimants were entitled to both an fee award under ORS attorney and a sanction under ORS for similar unreason- able conduct an insurer. To remedy seeming overlap “in statutes, those lieu of legislature adopted 656.262(10)(a) wording fee” in ORS at the recom- mendation of a task force assembled the Governor. for the following only pertinent legislative history is the 656.262(10)(a) that we have discovered. amendment to ORS Talbott, to the Joint Interim Special Annette counsel legal pur- Compensation, explained Workers’ Committee on as joint legislature, of the amendment to a session pose follows: group wanted
“This was an issue the Governor’s as described penalty, that in cases where there is clarify, or an unreasonable delay for unreasonable subsection amendment, provided: the 1990 Before unreasonably delays employer or unreasona- self-insured “If the insurer or unreasonably delays acceptance of a compensation, or denial bly refuses claim, for an additional shall be liable or self-insured the insurer any attorney plus fees which up percent due of the amounts then amount to 25 may assessed under ORS 656.382.” be spelled that’s penalty compensation, to pay refusal regard particularly 10 is the sole—and out in subsection is one half of attorney fee which fee— attorney fee that will amount is the sole additional even if this issue is combined type penalty, awarded on *24 level.” 1990 referee or the Board issues at the with other Session, Compensa- on Workers’ Committee Special Joint Talbott) (statement (SB 1197), 4,1990, of Annette May tion 20, Side B at 40. Tape Kevin Man- Talbott spoke, Representative
After Ms. nix made this statement: a letter to the if the worker wants to write says
“It
that
does it
get
attorney
he can
it. If his
get penalty,
director to
instead of some
him,
attorney gets
penalty
half of the
for
along
issue
penalty
in the
attorney
add on fee. If the
throws
hearing,
that
request
of other issues in
with a bunch
fee,
attorney
but
separate
issue doesn’t lead to a
penalty
question.
And that’s a policy
half the
is the fee.
penalty
ought And we all
just
way you
you
think
to.
You
answer it
penalty and
piggyback
have
war stories. But I’ve seen the
our
fee, and, literally,
my
in one of
attorney
where the
fee issue
cases,
No
and the
was
to the worker.
penalty
was $250
$7
came down
I had another one that
other relief to the worker.
penalty
was
and the
last week where the
fee
$300
my policy
ridiculous. That’s
And I think that’s
was $10.25.
Session,
on Workers’
Special
1990 Joint
Committee
issue.”
(remarks
(SB
4, 1990,
Repre-
1197), May
Compensation
Mannix)
B at 99.
Kevin
Side
Tape
sentative
those statements
construction of
The most plausible
656.262(10)
designed
of ORS
is that
the amendment
for unreasonable
Board to award
penalty
authorize the
awarding a
Board from
and to
prevent
insurer conduct
conduct.
fee for the same unreasonable
separate
that the amend-
not indicate
of the amendment does
history
attor-
to award
Board authority
intended to nullify
ment was
penalties
that do not address
fees under statutes
ney
656.386(1)
example,
For
unreasonable
conduct.
obtains
prevails
if the claimant
a fee award
requires
to do
nothing
It has
compensation.
on a claim for
benefits
We think
insurer conduct.
unreasonable
with penalizing
would be
fee scheme
in the attorney
change
such a significant
such an
demonstrating
history
by legislative
accompanied
However,
intention.
the testimony regarding the amendment
656.262(10)(a)
to ORS
656.386(1).
does not discuss ORS
We conclude that
the 1990 amendment
to ORS
656.262(10) was not
intended to prevent
the Board from
awarding a
reasonable attorney fee under ORS
The 1991 amendment
to the latter statute authorizes
Board to award a fee if the lawyer is instrumental
in obtaining
to a
prior
A
hearing.
fee award under ORS
656.386(1) is not subject to the “in lieu of an attorney fee”
656.262(10)(a).
limitation in ORS
To summarize,
the claim for medical services was a
“claim for compensation” within the meaning of ORS
(8).
and the definitions in ORS
Board’s conclusion that
insurer denied the claim is not erro-
neous. The denial did not concede that the underlying injury
was compensable and,
reason,
for that
the amount of compen-
sation was not the sole issue raised by the denial.
Finally,
Board’s
to award a
authority
fee under ORS
is not
*25
656.262(10)(a).
affected by ORS
The Board’s order awarding
an
fee under
attorney
ORS
If
correct.
Board order effects an
result
inequitable
for insurers who fail
to timely pay
requests
medical services,
inequity
must be
corrected
the legislature, not by this court. Stovall
v.
Salmon
Sally
Seafood,
25,Or
39,
The decision of the Court of is Appeals reversed. The order of the Workers’ Compensation Board affirmed, the case is remanded to the Board for further proceedings.
GRABER, J., in concurring part and in dissenting part.
I concur in the fully resolution of the first majority’s issue presented in this workers’ case. The compensation Court of with Appeals complied 2.570(4), which requires * * * the “concurrence of two judges pronounce judg- ment.”
I dissent, from however, abandon- majority’s ment of established in principles construction its statutory resolution of view, the second issue. In my does not allow an award of fees when an attorney compen- insurer medical bills late but does not pays deny for, the claimant’s of, or its sability responsibility condition. that,
The starting point
principle
is the
in workers’
cases, an award of
attorney fees can be made
only pursuant
statutory authorization.
v. Western
Forney
Plywood,
628, 632, 686
States
297 Or
P2d
(1984);
SAIF
(1984).
504, 511,
“It is legislature rights fundamental provides and remedies for workers and employers. This court cannot exceed legislative though limitations even inequity or to the employe employer might result. Unless a specific statute authorizes an award of attorney claimant, fees to a added.) this court cannot award them.” (Emphasis Similarly, 297 Or at Curry, 510-11, this court “recognize[d] that this [no result fees in the pre- situation * * * sented] harsh for claimant’s this case. this instance his work will go however, uncompensated; our ability to award fees workers’ compensation cases is limited granted to the authority hy statute. In this case we have authority no and must refuse to make an award.”
In the absence of clear legislative authorization, then, no fees are available.
The statute under which claimant seeks case is which provides:
“In involving all cases injuries accidental where a claim- *26 ant finally in an prevails appeal Court of Appeals petition for review to Supreme Court from an order or denying decision compensation, claim for the court shall allow a attorney reasonable fee to the attorney. claimant’s In such rejected cases prevails finally where the claimant in a hearing before itself, the referee or in a review the board then the referee attorney or board shall allow a reasonable If fee. an obtaining instrumental compensation for a hearing by held, claimant and a the referee is not reasonable fee shall Attorney be allowed. pro-
vided for in this section shall paid by the insurer or self- employer.” insured specifically Claimant relies on the third sentence of ORS — — providing for fees when no is held
support Legislative Assembly the fee award in this case. The added that sentence to the statute in 1991. Or 1991, Laws ch § 312, 1. interpreting statute, the court seeks to discern legislature. the intent of the PGE 0v.Bureau Labor and (1993).
Industries,
606, 610,
317 Or
“a decision the insurer not to ground or condition for which give is claimed is not or otherwise does not rise compensable original; compensation.” (Emphasis to an entitlement omitted.) footnote agree follow, I with SAIF.
For the reasons that
225 656.386(1) itself makes SAIF’s First, text of ORS phrase likely. interpretation uses the The statute more added), (emphasis compensation” “denying the claim for “denying compensation.” phrase Failure or rather than the accepted injury or condition hill for an to a medical refusal denying particular by compensation, amount of denies deny generally sought, not the claim but it does benefits interpretation compensation.1 thus of the statute Claimant’s By phrase the statute. “the claim for” out of reads the meaning interpretation gives to all words contrast, SAIF’s (in construing statute, See ORS 174.010 statute. * * * inserted; where what has been court is “not to omit provisions particulars such construction there are several or as will all”). give possible, adopted effect to is, if to be statutory reinforces SAIF’s context Second, reading. law sections of the workers’ Several compensa- to differentiate between a claimant’s entitlement (compensability) amount of owed tion and the (benefits). example, accepted 656.266 if For ORS for the claim * * * injury proving provides “[t]he that an burden of compensable proving and extent of the nature upon any disability resulting therefrom is worker.” 656.262(10)(a)2 added.) expressly (Emphasis Further, ORS unreasonably delaying unreasona- differentiates between (benefits), bly refusing pay compensation” the one “to delaying “acceptance unreasonably or denial of hand, and (compensability), on the other. claim” concerning injury not or condition that has an The submission of medical bill compensation. already accepted See can constitute the claim for been claims); 656.005(3) “claim”); process (defining (providingprocedure ORS 656.262 (notice any injury resulting in an need not be accident form). Moreover, employer a benefit can use particular an insurer or self-insured sought. deny injury are opportunity for which benefits or condition claim as an claims). situations, (providingprocedure process In those See ORS compensation. give of “the claim for” can rise to a denial submission of a medical bill case, in this however. situations is involved Neither of those 656.262(10)(a) part: provides, in delays unreasonably employer or unreason- or self-insured “If the insurer delays acceptance unreasonably or denial of
ably
pay compensation, or
refuses to
an additional
claim,
be liable for
shall
the insurer or self-insured
* * *
additional
The entire
up
percent
then due.
of the amounts
amount
represented
an
worker is not
paid
the worker if the
shall be
amount
paid
attorney,
shall be
represented
the worker
attorney.
worker is
If the
amount,
attorney fee.”
in lieu of an
the additional
one-half
Third, this court’s
cases
prior
recognized
“deny
ing
the claim for compensation”
in ORS
means
asserting
Peterson
at all. In
compensable
v. Compensation Department, 257 Or 369,
on us is Ellis v. McCall
308 Or
In the the text, context, and inter pretations suggest denying that a “decision the claim for compensation” meaning within the of ORS ais pay compensation ground decision not to on the compensable or condition is not or otherwise does not compensation. entitle the claimant to However, because legislature’s regard completely intent in that clear after foregoing inquiry, legislative history I also examine the the 1991 amendment to the statute.
The 1991 amendment
to ORS
part
legislative history
enacted as
of Senate Bill
540.
Senate Bill 540 demonstrates
the amendment was
purpose
overruling
enacted for the
Duane
Jones,
L.
Van
(1990),
App
Natta 875
in Jones v. OSCI,
78,
aff’d
App
(1991),5
1318,
P2d
on recons 108 Or
During consideration of Senate Bill a member of prin- the workers’ claimants’ bar who was the cipal hearings witness at the Senate and House testified: requires Bill
“[Senate 540] insurers or self-insured *29 pay attorney’s an employers any compen- fee over and above sation when a denial is prior going rescinded to the matter to hearing. As I say, that was the law and that was practice the in Compensation workers’ until the Workers’ compensable injury. not related to the This court held that the insurer’s failure respond timely acceptance responsibility payment in a of manner was not for of holding, unpaid chiropractic “assume[d] [claimant’s] the In so this court that bills. 656.262(6).” (footnote omitted). Id. at bills were ‘claims’ under ORS 77 That assumption holding, a was not however. 4 include, denying compensation example, for could for that the Other bases compensable employer responsible injury particular or that the claim is not filed too late. was 5 OSCI, Jones, 42 (1990), in L. Jones 107 Duane Van Natta 875 Or aff’d 230, 814 (1991), 78, 810 1318, on recons 108 Or App App 558 Board and P2d P2d 656.386(1) “provide[d] Appeals of no held that the former version ORS the Court employer insurer-paid to a claimant when the an award of basis for request hearing has been claim after the claimant’s withdraws its denial App matter.” at 232. The has decided the filed but before referee compensability of the claimant’s injury. the Jones underlying case was issue App Or at 82. * ** csHeáDuane Jones. year ago
Board issued a case about only reverses the Duane Jones my belief that this bill Kit’s Labor, on March Recording, Senate Committee Tape case.” 4Q, 20, 1991, A. Tape Side to the House witness made similar comments same that this bill when Labor, applies on emphasizing
Committee “rescinds their denial.” employer the insurer or self-insured Labor, 27,1991, May House Committee on Tape Recording, Side B. See also House Committee Tape Recording, Tape (statement B 29, 1991, 154, Side Labor, Tape May testimony, law- Mannix that Representative supporting company convincing the insurance yers who “succeedO would be going hearing the claim was before good fee”). awarded an attorney Senate, floor of Senator Kerans stated
On the known as the Jones Bill 540 reverses what’s that “Senate worked lawyer fees where decision” and permits ‘ it been denied claim, though ‘to even had your advance insurer, insurer, up even to the minutes before if the said, we will no held, reversed field and okay, claim, but, fact, Record- Tape it.” your accept resist longer 27,1991, Side A. Debate, Tape March ing, Senate Floor and of the principal Those statements of legislators acceptance are couched in terms of denial versus witness the Jones And, case, claim. underlying compensability was a case overrule, Senate Bill 540 was designed which had been claim underlying which compensability text, thus confirms what history denied. The legislative A “decision context, deny- interpretations suggest. and prior of ORS within the ing meaning the claim for compensation” on the not to pay a decision compensable is not or condition ground the claimant otherwise does entitle compensation. failure to pay final contention is that the Claimant’s to written bills, at definitively medical least to respond bills, time set statute6 medical within the request days requires respond within that an or insurer *30 applied limit has the time claims for in the first instance. The Board 1983, Billy J. payment in claims for of medical services since (1983). Eubanks, of that This court assumed correctness 35 Van Natta 131 Insulation, 3, supra Ellis McCall application Or 77. note at in a “de facto” denial of the claim underlying for compensation. disagree. I
I note, first, has drawn a legislature distinc- 656.262(10)(a) delay denial. tion between provides for a when an penalty “insurer or self-insured employer unreasonably delays or unreasonably refuses pay compen- sation, or unreasonably delays acceptance or denial of a If claim.” delay paying equivalent were of a claim, denial the two in that statute phrases would be context, redundant. The statutory therefore, weighs against claimant’s suggested interpretation concept denying a claim.
Second, and more
claim
fundamentally,
this
could
not have been
denied
silence when claimant submitted the
medical bills in question, because the claim already had been
v. SAIF,
Bauman
accepted. In
compensable, of medical a number claimant’s neck condition. SAIF paid to that condi- $11,400) accepted related bills over (totaling at the four bills issue. tion, before claimant submitted a denial of the four bills was not of those medical late payment *31 and, therefore, claim did not entitle claimant to fees under ORS 656.262(6)
The turns on its head. As majority ORS noted, that an insurer or self- just provides statute faith, insured who has a claim in but employer accepted good claim not compensable who “later obtains evidence that the is is not for paying responsible or evidence that the the agent claim,” may, acceptance within two “revoke the claim years, Also, noted, a of just and issue formal notice claim denial.” as claim, and a order made binding SAIF claimant’s accepted with of SAIF for it. When SAIF four responsible disagreed medical failed them within claimant’s bills and many did days acceptance of SAIF not “revoke the claim receipt, was, denial.” reason and issue formal notice claim The not assert course, then, now, that SAIF did and does not claim is or that it is not for responsible the not compensable claim; it with the amount of four of disagreed the simply more than 90 many paid claimant’s medical bills and them after them. days receiving that, holds because SAIF failed to majority did actually ORS it “revoke the claim
follow
for
subject
doing
and was
fees
acceptance”
paying attorney
That
This was
reasoning
that is not * * * claim, payable of acceptance Pending the claim. or denial ** * expenses. medical or burial does include the costs of a claimant benefits acceptance notice of shall: Even using the majority’s definition of “claim,” under which each of the “claim,” medical bills was a there was no denial. There was late only payment, which penalty 656.262(10)(a) is exclusive of attorney fees. See ORS is exclusive of (penalty for late payment benefits).
A related, and
fundamental,
error of
equally
majority
its use of the usual
statutory
definitions
“claim” and “compensation.”
“With
656.003,
to ORS
this court implicitly con
Stephen,
cluded in
(1989),]
[308
SAIF v.
Or
before “claim” implies “(a) compensable. Specify what are conditions “(b) disabling or the claim is considered Advise the claimant whether added.) nondisabling.” (Emphasis — referred to claim for being original defined “claim” bill thereafter condition, rather than medical every injury in accepted sent on the claim. already “denying phrase
This court had construed the other sentences the claim for compensation” for the mean the claim definitively original sentence was condition, before the third disputed concerning Because of those decisions added that section. read majority’s other sentences in a begins who before a hearing claimants ing puts prevail claimants who position different and more favorable than legislature sought prevail place. after takes parity, disparity. summarize, denying was no “decision
To there Claimant is not entitled in this case. compensation” claim I from 656.386(1), and dissent to an fee under ORS contrary holding. the majority’s J., Carson, J., Gillette, join opinion. C.