Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

In re Compensation of Walker

Court of Appeals of Oregon

March 8, 2017

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,

          Argued and submitted March 31, 2016

         Workers' Compensation Board 0906234; A156440

          Vera Langer argued the cause for petitioner-cross-respondent. On the opening brief were Theodore P. Heus and Lyons Lederer, LLP. With her on the reply and answering brief was Lyons Lederer, LLP.

          Julene M. Quinn argued the cause and fled the briefs for respondent-cross-petitioner.

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

         Case Summary: Employer in this workers' compensation case seeks review of an order of the Workers' Compensation Board assessing a penalty under former ORS 656.268(5)(d) (2009) and attorney fees under ORS 656.382(1), based on employer's failure to close claimant's claim within 10 days of a request for closure. Claimant contends on cross-petition that the board erred in failing to award additional attorney fees under ORS 656.382(1). Held: Because, at the time of the request for claim closure, claimant had refused to attend an independent medical examination that employer was legally permitted to require, employer had a legitimate doubt as to its obligation to close the claim. The board therefore erred in assessing a penalty and attorney fees.

         Reversed on petition; affirmed on cross-petition.

          GARRETT, J.

         This is the second time that we are asked to review an order of the Workers' Compensation Board relating to claimant's entitlement to a penalty under/brmerORS656.268(5)(d) (2009), renumbered as ORS 656.268(5)(f) (2015), [1] and attorney fees under ORS 656.382(1), for employer's failure to close her claim within 10 days of her September 30, 2009, request for closure.

         In its first order addressing the issue, the board rejected claimant's request for a penalty, determining that there were no amounts "then due" on which to base a penalty at the time employer closed the claim on November 5, 2009. In our judicial review of that order in Walker v. Providence Health System Oreson. 254 Or.App. 676, 298 P.3d 38, rev den, 353 Or 714 (2013) (Walker III), we disagreed with the board's reasoning. We held, first, that any penalty that might be due claimant under former ORS 656.268(5)(d) (2009) as a result of employer's de facto refusal to close claimant's claim on October 10, 2009 (i.e., within 10 days of claimant's September 30, 2009, request for closure), must be based on the amount of compensation that claimant would have been entitled to be paid if employer had closed the claim on that date. Walker III, 254 Or.App. at 684. That amount was 35 percent permanent partial disability. Id. at 685.

         We further explained, however, that whether employer's de facto failure to close the claim entitled claimant to any penalty at all also depended on whether employer had a "legitimate doubt" as to its obligation to close the claim. Id. Claimant had argued that employer did not have a legitimate doubt about its duty to close the claim on October 10, 2009, because, by that date, it had "sufficient information" on which to base a closure of the claim, as required by ORS 656.268(1)(a) (providing that an employer generally must close a claim when the claimant "has become medically stationary and there is sufficient information to determine permanent disability"). The board had not addressed that contention, determining instead that the fact that claimant's right to payment of compensation had been "suspended" gave employer a legitimate doubt as to its duty to close the claim. We rejected that reasoning, Walker III, 254 Or.App. at 688-89, explaining that former ORS 656.268(5)(b) (2009), renumbered as ORS 656.268(5)(d) (2015), [2] provided an "unambiguous mandate" to close a claim within 10 days of a worker's request for closure (when the claim is otherwise subject to closure under ORS 656.268) and the fact that benefits had been suspended did not alter that obligation. Id. We therefore remanded the case for the board to address in the first instance claimant's contention that employer did not have a legitimate doubt as to its duty to close the claim on October 10, 2009, because it had "sufficient information" on which to base claim closure under ORS 656.268(1)(a).

         On remand, employer contended that, in light of claimant's failure to comply with the requested independent medical examination, the record lacked sufficient information on October 10, 2009, to determine the extent of claimant's permanent disability due to the newly accepted conditions of major depression and panic disorder[3] and, therefore, employer had a legitimate doubt as to its obligation to close the claim. The board disagreed. The board reasoned that, because the medical record on November 5, 2009-the date that employer actually closed the claim-was the same as the medical record on October 10, 2009, employer necessarily had "sufficient information" on October 10, 2009, on which to base claim closure.

         On judicial review, employer contends that the board erred. We agree. It is undisputed that the November 5, 2009, closure was an "administrative" closure (based on the suspension of claimant's benefits) that had nothing to do with the existence of "sufficient information" from which to determine permanent partial disability. See Walker III, 254 Or.App. at 680 (describing November 5, 2009, closure); OAR 436-030-0034 (providing for administrative closure when a claimant does not attend a closing examination or when a suspension order has been issued). Because the November 5, 2009, closure was not based on the board's consideration of the medical record, the fact that the record on that date happened to be the same as the record that existed on October 10, 2009, has no relevance. Put another way, no inference can be drawn from the November 5 closure that employer had sufficient information from which to determine permanent partial disability on October 10, 2009.[4] Thus, we conclude that the board erred in basing its assessment of a penalty on that rationale.

         We further conclude that, in light of claimant's continued refusal on October 10, 2009, to attend employer's lawfully requested independent medical examination (IME), employer did have a legitimate doubt as to its legal obligation to close the claim under ORS 656.268. We addressed this issue in our opinion in Walker IV, decided after the board's order on remand in this case. In Walker IV, claimant challenged the board's determination that employer's refusals to close the claim in response to claimant's requests for closure on March 25 and March 31, 2009, did not warrant a penalty under former ORS 656.268(5)(d) (2009), because employer's refusals to close the claim were not unreasonable, in light of claimant's refusal to attend the requested IME. In Walker IV, we affirmed the board's order on that issue, holding that employer reasonably requested the IME and that claimant was required to attend. 267 Or.App. at 103. We said that "employer was entitled to request the IME in the process of evaluating claimant's impairment for the purpose of claim closure, " id. at 101, and that, in light of claimant's continued refusal to attend the IME, employer's failure to respond to requests for closure were not unreasonable. Id. at 103. The same rationale applies here. Although, as we held in Walker III, the suspension of claimant's benefits based on her failure to attend the IME did not, itself, provide employer with a legitimate doubt as to its obligation to close the claim under former ORS 656.268(5)(b) (2009), 254 Or.App. at 689, in light of the fact that employer was statutorily entitled to request an IME before claim closure, we conclude that claimant's refusal to submit to the IME allowed employer reasonably to conclude ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.