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In re Olvera-Chavez

Court of Appeals of Oregon

November 19, 2014

In the Matter of the Compensation of Jose L. Olvera-Chavez, Claimant. LIBERTY NORTHWEST INSURANCE CORP.; and HALLMARK INNS & RESORTS, INC., Petitioners Cross-Respondents,
v.
JOSE L. OLVERA-CHAVEZ, Respondent Cross-Petitioner

Submitted July 22, 2014

Workers' Compensation Board. 1103936.

Affirmed on petition; on cross-petition, remanded for redetermination of penalty under ORS 656.268(5)(d) based on all compensation due as of the May 25, 2011, premature closure; otherwise affirmed.

David O. Wilson filed the brief for petitioners-cross-respondents.

Ronald A. Fontana and Ronald A. Fontana, P.C., filed the brief for respondent-cross-petitioner.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.

OPINION

Page 929

[267 Or.App. 57] TOOKEY, J.

In this workers' compensation case, insurer Liberty Northwest Insurance Corp. (Liberty), and employer Hallmark Inns and Resorts seek review of an order of the Workers' Compensation Board (board) upholding a determination by an administrative law judge (ALJ) that Liberty prematurely closed claimant's low back claim after claimant finished an authorized training program (ATP), and that claimant is entitled to additional benefits for temporary disability, a penalty under ORS 656.268(5)(d), and attorney fees. On judicial review, Liberty asserts that the board erred in setting aside its notice of closure and also erred in assessing a penalty and related attorney fees. In a cross-petition, claimant seeks additional penalties and attorney fees. We affirm on the petition, and on the cross-petition we remand for a redetermination of penalty under ORS 656.268(5)(d) based on all compensation due as of the May 25, 2011, premature closure, and otherwise affirm.

We first describe the relevant statutory provisions and administrative rules relating to claim closure, because they provide necessary context for an understanding of the petition and cross-petition. As applicable here, ORS 656.268(1)(a) to (d)[1] set forth the procedures generally for claim closure. ORS 656.268(1) provides that, when a claimant is not enrolled and actively engaged in training, " [t]he insurer or self-insured employer shall close the worker's claim, as prescribed by the Director of the Department of Consumer and Business Services," when the claimant " has become medically stationary and there is sufficient information to determine disability." See also OAR 436-030-0020(1)(a) (providing for claim closure when " [m]edical information establishes there is sufficient information to determine the extent of permanent disability under ORS 656.245(2)(b)(C), and indicates the worker's compensable condition is medically stationary" ).[2] Thus, the general provisions

Page 930

relating to [267 Or.App. 58] claim closure require that a claim be closed when the worker is medically stationary[3] and there is sufficient information to determine disability.

ORS 656.268(10)[4] describes the procedures that apply when a claim is reopened so that the worker can attend an ATP. During training, the worker continues to receive that portion of the permanent disability award relating to impairment, and also begins to receive temporary disability compensation; however, any benefits the worker is receiving for " work disability" are suspended.[5] ORS 656.268(10). When the worker ceases to be enrolled and actively engaged [267 Or.App. 59] in training, " the insurer or self-insured employer shall again close the claim * * * if the worker is medically stationary[.]" Id. The notice of closure is required to include " the duration of temporary total or temporary partial disability compensation." Id. ORS 656.268(10) further provides that, after ATP terminates, " [p]ermanent disability compensation shall be redetermined for work disability only." See also OAR 436-030-0020(13) ( providing that, when ATP has ended and the worker is medically stationary, the insurer must issue a new notice of closure and must redetermine the worker's " work disability" ).

We turn to the facts of this case as they pertain to the premature closure issue. Claimant suffered an on-the-job disabling injury to his back in 2007. After treatment and time loss, claimant's attending physician determined that claimant's condition had become medically stationary as of September 11, 2009. Liberty closed the claim on December 1, 2009, with an award ...


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