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Hamilton v. Pacific Skyline, Inc.

Court of Appeals of Oregon

October 29, 2014

CARL W. HAMILTON, Petitioner,
v.
PACIFIC SKYLINE, INC., Respondent

Workers' Compensation Board. 1201235.

Ronald A. Fontana argued the cause and filed the briefs for petitioner.

Howard R. Nielson argued the cause for respondent. On the brief were Karen S. Varney and Radler, Bohy, Replogle & Conratt, LLP.

Before Duncan, Presiding Judge, and Lagesen, Judge, and De Muniz, Senior Judge.

OPINION

Page 792

[266 Or.App. 677] LAGESEN, J.

Claimant petitions for review of orders of the Workers' Compensation Board (board).[1] In those orders, the board (1) reversed an administrative law judge's (ALJ's) determination that claimant was not entitled to temporary disability benefits for the period of time after claimant's self-insured employer disapproved claimant's attending physician, and awarded temporary disability benefits to claimant for that time period; and (2) concluded that, notwithstanding the fact that claimant's employer had erroneously concluded that claimant was not entitled to temporary disability benefits for the time period at issue, claimant was not entitled to penalties and attorney fees under ORS 656.262(11)(a) because, under the circumstances, the employer's failure to pay the benefits owed was not unreasonable. Claimant assigns error to the board's determination that he was not entitled to penalties and attorney fees under ORS 656.262(11)(a). He argues, in part, that the board's determination is not supported by substantial reason. We agree. We therefore reverse and remand to the board to supply the reasoning for its determination. See Drew v. PSRB, 322 Or. 491, 500-01, 909 P.2d 1211 (1996) (when agency fails to connect its findings of fact to its holding, order must be vacated and remanded).

Claimant does not assign error to the board's findings of historical fact. Accordingly, we draw the facts underlying this case from the board's orders, and from the factual findings of the ALJ adopted by the board. Meltebeke v. Bureau of Labor and Insustries, 322 Or. 132, 134, 903 P.2d 351 (1995).

Claimant injured his left knee in 2008 while working for employer as a truck driver. Employer eventually accepted claimant's workers' compensation claim for a number of left knee conditions. Claimant began treatment for his knee conditions with Dr. Baltins, an orthopedic surgeon, [266 Or.App. 678] in December 2008, beginning a sequence of surgeries and physical therapy that spanned several years. Baltins's

Page 793

chart notes throughout that period indicate that claimant was disabled, and do not indicate an ending date for that disability. Although employer did not receive those chart notes until April 23, 2012, a November 1, 2011, note by employer's claim examiner reflects that, as of that date, Baltins had found that claimant remained disabled and required additional physical therapy.

In connection with claimant's disability, employer continuously paid total temporary disability benefits until February 26, 2012. On February 22, 2012, employer discontinued its approval of Baltins as claimant's attending physician. Thereafter, on March 9, 2012, employer alerted claimant that claimant's temporary disability benefits had ended as of February 25, 2012, because, at that point, Baltins was no longer authorized to be claimant's attending physician, and claimant had not obtained a new attending physician. Claimant requested a hearing before an ALJ on the termination of his temporary disability benefits. In the interim period before the scheduled hearing date in June, employer paid claimant temporary disability benefits for the period of February 27, 2012 through April 29, 2012, and for the period between April 30, 2012 and May 13, 2012. Employer made the first payment on April 16, 2012, and the second payment on May 15, 2012.

On April 26, 2012, the Workers' Compensation Division of the Department of Consumer and Business Services (WCD) upheld employer's disapproval of Baltins as claimant's attending physician.

Claimant's hearing was held as scheduled in June. Following the hearing, the ALJ issued an order concluding that claimant was not entitled to temporary disability benefits after the date on which Baltins had been disapproved as claimant's attending physician. The ALJ reasoned that, because claimant had no attending physician after that date, there was no authorization from an attending physician for temporary disability benefits in effect for that period. Accordingly, the ALJ concluded that, under ORS 656.262(4)(g), benefits were not owed because the statute specifies that [266 Or.App. 679] " [t]emporary disability compensation is not due and payable * * * after the ...


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