Appeal from Circuit Court, Jackson County. L. L. Sawyer, Judge. No. 72-1014-L.
John E. Ferris, Medford, argued the cause for appellant. With him on the briefs were Lyle C. Velure and Collins, Redden, Ferris & Velure, Medford.
Patrick Ford, Medford, argued the cause for respondent. On the brief was Robert L. Cowling of Ford & Cowling, Medford.
Foley, Judge. Schwab, Chief Judge, and Thornton, Judge.
This is an appeal by the claimant from an order of the circuit court which affirmed an order of the Workmen's Compensation Board. The Board's order reversed an order of the hearing officer which granted claimant a temporary total disability award and, in addition, assessed a penalty pursuant to ORS 656.262(8).*fn1
The facts underlying this appeal are as follows: Claimant sustained a compensable injury on May 7, 1967, which claim was finally closed in July 1970 with an award of unscheduled permanent partial disability. Pursuant to ORS 656.216 the employer's carrier paid the award to claimant in monthly instalments beginning in August 1970 and continuing through June 5, 1971. On September 24, 1970 claimant was hospitalized for psychiatric care. On May 25, 1971 claimant sent a letter to the employer's carrier requesting that claimant's case be reopened for aggravation benefits and demanding payment of temporary total disability from September 24, 1970. Apparently neither the employer nor its carrier responded to claimant's letter, nor was any payment made to claimant on the aggravation claim. Consequently, claimant requested a hearing by the Workmen's Compensation Board.
A hearing was held on the aggravation claim on August 17, 1971. On the basis of the evidence produced at that hearing the hearing officer concluded that claimant's psychiatric disability was an aggravation
of his May 7, 1967 injury and that claimant was temporarily totally disabled. He also concluded that the employer's failure to pay compensation from the time of claimant's hospitalization on September 24, 1970 was unreasonable. ORS 656.262(8). He therefore ordered the payment of (1) compensation from September 24, 1970 until termination would be authorized pursuant to ORS 656.268; (2) a penalty of 25 per cent of the compensation payable from September 24, 1970 to the date of the order (October 8, 1971); and (3) claimant's attorney fee.
In purported compliance with the hearing officer's order, the employer's carrier has paid to claimant temporary total disability compensation for the period beginning June 5, 1971 (the date on which the employer paid the last instalment of the permanent partial disability award). The carrier has refused to pay temporary total disability compensation between September 24, 1970 and June 5, 1971 because it had during that period paid to claimant monthly instalments of the permanent partial disability award. After demanding payment of the temporary total disability compensation and receiving no satisfaction, claimant requested a hearing on the employer's allegedly unreasonable failure to comply with the hearing officer's order. After a hearing a different hearing officer concluded that the order of October 8, 1971 was not in error and added to it only that the employer was now liable for more attorney fees.
On review the Workmen's Compensation Board reversed the hearing officers' orders. It concluded that claimant was not entitled to concurrent temporary total disability and permanent partial disability payments for the time period in dispute. In addition the Board concluded that the employer's conduct did not
warrant a penalty pursuant to ORS 656.262(8). On appeal the circuit court affirmed the order of the Workmen's ...