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In re Compensation of Walker

Court of Appeals of Oregon

February 25, 2015

In the Matter of the Compensation of Joy M. Walker, Claimant.
v.
Joy M. WALKER, Respondent Cross-Petitioner PROVIDENCE HEALTH SYSTEM OREGON, Petitioner Cross-Respondent,

Workers' Compensation Board 1000400, 1000401. On petitioner's petition for reconsideration filed December 3, 2014, and respondent's response to petition for reconsideration filed December 9, 2014. Opinion filed November 19, 2014. 267 Or.App. 87, 340 P.3d 91 .

Theodore P. Heus and Lyons Lederer, LLP, for petition.

Julene M. Quinn for response.

Before Nakamoto, Presiding Judge, and Haselton, Chief Judge, and Wollheim, Senior Judge.

OPINION

Page 1116

[269 Or.App. 406] WOLLHEIM, S. J.

Providence Health System (Providence) filed a petition for reconsideration, requesting the court to " clarify" three aspects of our decision regarding an order, under ORS 656.325(1), suspending claimant's compensation for an express period of time. In addition, Providence requests that we correct a mistake in the citation to a subsection of an administrative rule and the description of a statute. We allow the petition for reconsideration. We correct the mistake in the citation to the administrative rule and the description of a statute, but otherwise adhere to our opinion.

Our prior opinion explains the contentious procedural history of this workers' compensation claim, which dates back to April 2004, see Walker v. Providence Health Systems Oregon, 267 Or.App. 87, 90-98, 340 P.3d 91 (2014), and we will not repeat that history here except when necessary to understand the petition for reconsideration.

One of the issues on judicial review was whether Providence was entitled to an Independent Medical Examination (IME) before closing the claim. The Workers' Compensation Board concluded that Providence was entitled to an IME before claim closure and, for that reason, the board determined that Providence's refusal to close the claim was not unreasonable under ORS 656.268(5). Relying on our prior opinion in Providence Health System v. Walker, 252 Or.App. 489, 289 P.3d 256 (2012), rev den, 353 Or. 867, 306 P.3d 639 (2013), we held that the board correctly declined to award claimant a penalty based on Providence's refusal to close the claim. Walker, 267 Or.App. at 100.

Providence's petition for reconsideration raises three other issues: (A) our interpretation of the order suspending claimant's compensation beginning June 15, 2009, and continuing until claimant complied with Providence's request for an IME or the closure of the claim; (B) our standard of review of the board's decision that Providence could not have " reasonably" known the information that resulted in an increase " by 25 percent or more" in the compensation paid to claimant on an award of " at least 20 percent" permanent disability under ORS 656.268(5)(e); and (C) the beginning and ending dates of claimant's compensation suspension.

[269 Or.App. 407] Providence argues that the order suspending claimant's compensation continued unless and until she attended the IME. Further, because claimant never attended the IME, Providence contends that the suspension of claimant's compensation continues, even after claim closure. Finally, Providence argues that the express language in the order terminating the suspension of benefits upon closure of the claim does not control and our decision affirming the board's order is inconsistent with the statutes.

Essentially, Providence repeats the argument made in its briefs. A petition for reconsideration is not an opportunity to do that. Nor is it an opportunity to improve the arguments it made in its briefs, now that it has the advantage of our decision. To the contrary, under ORAP 6.25(1)(e), we disfavor a petition for reconsideration that argues that the court erred in addressing legal issues already in the parties' briefs. We have already considered Providence's arguments about the order suspending claimant's compensation and the effect of the express language in that order upon claim of closure and, for that reason, we do not reconsider that issue.

Next, we consider the standard for reviewing the board's conclusion that Providence could not have reasonably known the extent of claimant's disability at the time of claim closure. ORS 656.268(5)(e) requires that a penalty shall be assessed against an employer if the worker's permanent disability compensation is increased by 25 percent ...


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