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In re Compensation of Duffour

Court of Appeals of Oregon

February 15, 2017

In the Matter of the Compensation of Warren D. Duffour, Claimant.
v.
PORTLAND COMMUNITY COLLEGE, Respondent, Cross-Petitioner. Warren D. DUFFOUR, Petitioner, Cross-Respondent,

          Argued and submitted January 15, 2016.

         Worker's Compensation Board 1205465, 1204519;

          Ronald A. Fontana argued the cause for petitioner-cross-respondent. With him on the briefs was Ronald A. Fontana, P.C.

          Matthew F. Denley and Cummins, Goodman, Denley & Vickers, P.C., fled the briefs for respondent-cross-petitioner.

          Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

         Case Summary: Claimant petitions for review of a final order of the Workers' Compensation Board; employer cross-petitions for review of the same order. ORS 656.298(1), (4). Claimant assigns error to the board's denial of his requests for penalties and attorney fees in connection with employer's premature closure of his workers' compensation claim, which the board concluded were procedurally barred. Employer assigns error to the board's award of some of the penalties and fees that the board determined were not procedurally barred. Held: The board erred to the extent that it concluded that claimant had not properly raised his requests for penalties and fees.

         Reversed and remanded on the petition; affirmed on the cross-petition.

          LAGESEN, J.

         Claimant petitions for review of a final order of the Workers' Compensation Board; employer cross-petitions for review of the same order. ORS 656.298(1), (4). The issue presented is whether claimant raised his requests for various penalties and attorney fees in connection with employer's premature closure of his workers' compensation claim in a procedurally proper manner. The board concluded that claimant had not properly raised some of his requests for penalties and fees but had properly raised others. On review, claimant assigns error to the board's denial of those penalties and fees that the board concluded were procedurally barred, while employer assigns error to the board's award of some of the penalties and fees that the board determined were not procedurally barred. We conclude that the board erred to the extent that it concluded that claimant had not properly raised his requests for penalties and fees. For that reason, we remand to the board to reconsider the fee and penalty requests that it denied, but otherwise affirm the board's order.

         The facts pertinent to the questions before us are procedural. In February 2010, claimant was working in the library at Portland Community College when he was violently attacked by an assailant. The attack caused claimant to suffer a traumatic brain injury. Employer accepted claimant's workers' compensation claim for the conditions resulting from the workplace attack.

         A year and one-half later, on August 29, 2012, employer issued a notice of closure for the claim. The notice of closure found that claimant was stationary as of August 20, 2012, that temporary total disability was authorized from the date of injury to the date of closure, and that claimant was entitled to permanent partial disability.

         On September 10, 2012, claimant sought reconsideration of the notice of closure with the Appellate Review Unit (ARU) of the Workers' Compensation Division under ORS 656.268(5)(c) (2011), [1] which requires a party objecting to a notice of closure to seek reconsideration with the director of the Workers' Compensation Division before seeking a hearing. He contended that the notice of closure was premature and should be rescinded.

         Also on September 10, claimant filed a hearing request with the board. The request indicated that claimant was seeking a hearing on entitlement to a penalty under ORS 656.268(5)(d)[2] and attorney fees under ORS 656.382(1)[3] because of the premature claim closure, and on entitlement to a penalty and fees under ORS 656.262(ll)(a)[4]for employer's failure to pay temporary disability after August 20.

         On October 2, 2012, the ARU issued its order on reconsideration. The ARU agreed with claimant that the notice of closure was ...


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