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In re Compensation of Kuralt

Court of Appeals of Oregon

February 28, 2018

In the Matter of the Compensation of Andrew Kuralt, Claimant.
v.
SAIF CORPORATION and Northwest Control Co., Respondents. Andrew KURALT, Petitioner,

          Submitted August 31, 2016

         Workers' Compensation Board 1400188; A159415

          Juliana E. Coons fled the briefs for petitioner.

          Beth Cupani fled the brief for respondents.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

         Case Summary:

         Claimant seeks review of an order of the Workers' Compensation Board, asserting that the board erred in reversing an order of an administrative law judge determining that claimant had "good cause" to fle a claim after the expiration of the 90-day notice period in accordance with ORS 656.265(4)(c) because he feared that his employment would be in jeopardy if he fled a claim. The board reasoned that there was not good cause because there was no actual threat to claimant's employment.

         Held:

         If the worker's subjective belief that the worker will be laid off is based on an actual occurrence from which the worker reasonably could conclude that the worker would be laid off, then the worker has established good cause. The board's order was premised on a legal error that a worker can establish good cause only by showing an actual threat to the worker's employment.

         [290 Or. 480] EGAN, C. J.

         Claimant seeks review of an order of the Workers' Compensation Board, asserting that the board erred in reversing an order of an administrative law judge (ALJ) determining that claimant had "good cause" to file a claim after the expiration of the 90-day notice period in accordance with ORS 656.265(4)(c). We conclude on judicial review that the board's order is premised on legal error. ORS 183.482 (8)(a), (b)(A), (c). Accordingly, we reverse and remand the order for reconsideration.

         The facts are largely undisputed. Claimant, who works for employer as an HVAC service technician, had just finished installing an air conditioner when he felt an immediate intense pain in his right shoulder as he reached out to prevent some tools from falling. Claimant sought medical treatment the next day, but did not mention to the doctor that the incident had occurred at work; indeed, on forms completed at the doctor's office, claimant noted that the injury had occurred at home, because, as explained further below, he was concerned about his job security if he reported a work injury. The doctor prescribed conservative treatment for the pain.

         Claimant went to work the next day. He reported the injury to his two coworkers (one of whom he mistakenly believed was his supervisor) but he asked them not to report it to employer's safety coordinator.

         Ultimately, claimant's physician recommended surgery on claimant's shoulder to repair a torn tendon and rotator cuff. After the 90-day period set forth in ORS 656.265, [1] [290 Or. 481] but within one year from the date of the incident, claimant notified the safety coordinator that he would be missing work because of the surgery. At that time, he filled out a claim form. Claimant, who had filed several workers' compensation claims for minor injuries over the years, explained to the safety coordinator that he had not reported the shoulder injury sooner because of a conversation ...


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