92-00725; CA A79278 | Or. Ct. App. | Aug 24, 1994
SAIF petitions for judicial review of a Board order holding that, under the “dual capacity doctrine,” claimant was a subject worker at the time of his injury. We hold that SAIF is foreclosed from challenging compensability because it has accepted claimant’s claim and therefore dismiss the petition as moot.
Claimant is a dentist who incorporated his practice in July, 1989, and became a corporate officer with 100 percent ownership. On December 5,1991, he filed a claim for carpal tunnel syndrome. SAIF denied the claim. The referee set aside SAIF’s denial on the basis that ORS 656.027(9), as amended by the legislature in 1990, resembled the statute we interpreted in Erzen v. SAIF, 40 Or. App. 771" court="Or. Ct. App." date_filed="1979-06-25" href="https://app.midpage.ai/document/erzen-v-state-accident-insurance-fund-6926908?utm_source=webapp" opinion_id="6926908">40 Or App 771, 596 P2d 1004, rev den 287 Or 507 (1979). In that case, we held that a corporate officer who has not elected coverage may nonetheless receive benefits as a covered worker. On March 12,1993, the Board affirmed the referee.
On March 25,1993, SAIF sent claimant a “NOTICE OF ACCEPTANCE FOR A DISABLING INJURY” that stated, “Your workers’ compensation claim has been accepted.” The notice contained information about return to work assistance, amount and frequency of payment, and medical treatment. It informed claimant that SAIF had enrolled him in a managed care organization program and that SAIF was in the process of determining whether claimant’s physician, Dr. Buza, was “credentialed” by that organization. The notice did not, in any way, specify that the acceptance was contingent on SAIF’s right to appeal.
On April 9,1993, SAIF petitioned for judicial review of the Board’s order. On that same date, SAIF sent claimant a letter stating that its March 25 notice of acceptance “was made contingent upon our right to appeal in this case.”
Claimant asserts that SAIF’s petition for review should he dismissed, because SAIF accepted his claim on March 25,1993. SAIF responds that it issued the acceptance notice “so that the claim could be processed” and that “it was not intended to be an acceptance that would terminate SAIF’s right to appeal.” SAIF does not argue that the notice of acceptance was not an acceptance or that it was issued by mistake.
We first address SAIF’s argument that it was required by the Board’s order to issue the acceptance so that it could process claimant’s claim. SAIF cites no authority, and we find none, that requires an employer or insurer to issue a written acceptance of a claim after a Board order. To the contrary, where the employer or insurer seeks judicial review within 30 days, ORS 656.313(l)(a) “stays payment of compensation appealed,” except for specified temporary and permanent disability benefits.
In Tattoo v. Barrett Business Service, 118 Or. App. 348" court="Or. Ct. App." date_filed="1993-02-24" href="https://app.midpage.ai/document/tattoo-v-barrett-business-service-2615030?utm_source=webapp" opinion_id="2615030">118 Or App 348, 351-52, 847 P.2d 872" court="Or. Ct. App." date_filed="1993-02-24" href="https://app.midpage.ai/document/tattoo-v-barrett-business-service-2615030?utm_source=webapp" opinion_id="2615030">847 P2d 872 (1993), we held that employers are bound by the express language of their denials because, holding to the contrary, “an employer could change what it had expressly said in a denial to the detriment of all parties who have relied on the language.” We can see no reason why that rule should not apply to an acceptance as well.
Here, the acceptance was clear and unqualified. SAIF waited until two weeks after the notice of acceptance to
We next consider whether SAIF’s acceptance of the claim forecloses its right to challenge compensability. ORS 656.262(6) entitles claimants to written notice of claim acceptance or denial and specifies the information that must appear in a notice of acceptance. SAIF does not maintain that the notice it sent to claimant was something other than a notice of acceptance under the statute. Once it accepted claimant’s claim, SAIF was no longer in a position adverse to claimant. It was obligated to provide benefits. See ORS 656.262(2). Furthermore, after receiving SAIF’s acceptance, claimant no longer had a reason to defend the compensability of his claim under the dual capacity doctrine. His right to benefits had been secured, rendering the controversy over compensability moot. To now address the merits of SAIF’s petition would be to issue an advisory opinion. Hence, the petition for judicial review must be dismissed.
Petition dismissed.
SAIF’s contention that it was required to issue a notice of acceptance in order to process claimant’s workers’ compensation benefits is also weakened by ORS 656.262(9), which provides:
“Merely paying or providing compensation shall not be considered acceptance of a claimf.]”
We emphasize that our decision does not consider whether an insurer or self-insured employer can properly issue an acceptance that is contingent on its appeal rights.
This decision is consistent with the rule that voluntary satisfaction of a judgment generally forecloses an appeal from the judgment by the satisfying party. See City of Portland v. One 1973 Chevrolet Corvette, 113 Or App 469, 470, 833 P2d 1285 (1992). Like the City of Portland in that case, SAIF’s failure to use available statutory procedures pending review rendered its conduct voluntary.