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In re Compensation of Goodwin

Court of Appeals of Oregon

July 10, 2019

In the Matter of the Compensation of Samuel Goodwin, II, Claimant.
v.
NBC UNIVERSAL MEDIA - NBC UNIVERSAL, Respondent. Samuel GOODWIN, II, Petitioner,

          Argued and submitted March 28, 2018

          Workers' Compensation Board 1405977

          Julene M. Quinn argued the cause and filed the briefs for petitioner.

          Edward S. McGlone III argued the cause and filed the brief for respondent.

          Before Ortega, Presiding Judge, and Powers, Judge, and Brewer, Senior Judge.

         Case Summary: Claimant seeks judicial review of an order of the Workers' Compensation Board determining that his request for hearing from the denial of a new/omitted medical condition claim was untimely and that the circumstances do not support a determination that claimant had "good cause" under ORS 656.319(1)(b) for failing to file a request for hearing within 60 days of the mailing of the denial.

         Held: The board correctly determined that claimant's request for hearing was untimely under ORS 656.319(1)(a). The standard for the good cause determination under ORS 656.319(1)(b) is analogous to the standard for relief under ORCP 71 B and involves a two-step process: The first question is whether the party seeking relief has offered a cognizable ground for relief on account of mistake, inadvertence, surprise, or neglect. That question is a legal question reviewed by the Court of Appeals for errors of law. The second question, within the board's delegated discretion, is whether the particular circumstances constitute "good cause," and the Court of Appeals reviews that determination for whether the board acted within its delegated discretion. In exercising its delegated discretion, the board should be liberal in granting relief to afford a hearing on the denial of a claim when it can be done without doing violence to established rules of practice. The record before the board requires the legal conclusion in this case that claimant offered a cognizable ground for relief on account of mistake or inadvertence. But the Court of Appeals concluded that it could not review the [298 Or.App. 476] board's determination that claimant lacked good cause for fling to timely file the request for hearing, because the board did not articulate its reasoning in support of its determination.

         [298 Or.App. 477] POWERS, J.

         In this workers' compensation case, claimant assigns error to the Workers' Compensation Board's determination that his request for hearing from a denial of his new/omitted medical condition claim was untimely under ORS 656.319, and that the circumstances do not support a determination that claimant had "good cause" for failing to file a request for hearing within 60 days of the mailing of the denial. We review the board's order for errors of law and substantial evidence, ORS 183.482(8)(a) and (c), conclude for the reasons explained in this opinion that we are unable to review whether the board properly exercised its delegated discretion in determining that claimant did not have good cause, and therefore reverse and remand.

         The facts are largely procedural and undisputed, and we draw them from the board's order and the record. In August 2012, claimant was injured while working for employer NBC Universal as a painter for the set of the television show Grimm, when he fell from the lift gate of a truck and onto his back while holding an air compressor. He reported the injury to employer, and employer's medic gave him over-the-counter medication and heat packs. Claimant did not file a claim at that time.

         Then, on July 24, 2013, claimant was lifting a heavy piece of plywood at work when he felt a snap/pinch in his neck, the immediate onset of pain between his shoulder blades, and numbness in his left arm that extended into his fingers. Claimant sought chiropractic treatment and filed a claim. Claimant had an MRI, which his doctor interpreted to demonstrate disc protrusions at C5-6 and C6-7. Employer accepted a disabling claim for "neck and thoracic sprains." Employer closed the claim without an award of permanent partial disability, and claimant requested reconsideration of the notice of closure.

         In the reconsideration process, claimant did not attend a required medical arbiter examination. The Workers' Compensation Division of the Department of Business and Consumer Services issued a notice suspending claimant's benefits and the reconsideration process, as described in [298 Or.App. 478] ORS 656.325(1)(a). The department ultimately reinitiated the reconsideration process and upheld the notice of closure.

         Claimant continued to suffer symptoms. A neurosurgeon ordered a second MRI, which was interpreted to show degenerative disc disease with disc protrusions accompanied by osteophytes at multiple levels, most prominent at C5-6 and C6-7, for which claimant had surgery.

         On August 1, 2014, claimant, through counsel, sought acceptance of a new/omitted medical condition described as "right C6 foramen disc rupture, however termed." AIG, employer's workers' compensation processing agent, arranged an independent medical examination of claimant by a neurosurgeon in Portland for September 2, 2014, but claimant had moved to Oklahoma and did not attend. On September 30, 2014, AIG denied the claim, stating that it lacked sufficient information to determine whether the condition was work related. On October 6, 2014, claimant discharged his attorney.

         Claimant received AIG's denial of the new/omitted medical condition claim. The procedures for challenging the denial of a claim are set out in ORS 656.262(9), ORS 656.283, and ORS 656.319(1). ORS 656.283(1) provides that a party "may at any time request a hearing on any matter concerning a claim." ORS 656.283(2) provides:

"A request for hearing may be made by any writing, signed by or on behalf of the party and including the address of the party, requesting the hearing, stating that a hearing is desired, and mailed to the Workers' Compensation Board."

         ORS 656.262(9) provides that, if an employer denies a claim for compensation, then the worker may request a hearing pursuant to ORS 656.319. ORS 656.319(1)(a), in turn, provides that a request for hearing on a denied claim must be filed within 60 days after the mailing of the denial.[1]

         [298 Or.App. 479] OAR 438-005-0070, the board's administrative rule implementing ORS 656.283(2), provides:

"Proceedings before the Hearings Division are begun by filing a request for hearing meeting the requirements of ORS 656.283 and OAR 438-005-0046. *** In addition to the information required by [ORS] 656.283(2), the person requesting a hearing should include the person's full name, the name of the injured worker if different from that of the person requesting the hearing, the date of the injury or exposure, the name of the employer and its insurer, if any, and the claim number. A copy of the request should be served on the insurer, self-insured employer, claimant, or if represented, claimant's counsel."

         On November 17, 2014, claimant mailed a certified letter to the Sanctions Unit of the department's Workers' Compensation Division. The letter described claimant's two injuries, his frustrations with his inability to work or to receive further medical treatment, and his disagreement with a doctor's view that there was a degenerative component to his condition. The letter did not explicitly mention the denial or request a hearing, but concluded with the request, "Can anyone help me with resolving these issues?"

         The Sanctions Unit forwarded claimant's letter to the department's "Ombudsman for Injured Workers," who acts an advocate for injured workers.[2] On December 1, 2014, [298 Or.App. 480] an ombudsman spoke to claimant and his father by telephone at a number provided in the November 17 letter. The ombudsman confirmed from the conversation that it was claimant's intention in the letter to request a hearing on the denial of his new/omitted medical condition claim. The ombudsman told claimant that she would deliver the letter to the board, but that claimant should send another letter to the department requesting a hearing. The board found that the ombudsman told claimant that he had 60 days from the date of mailing of the denial within which to challenge the denial. The board further found that the 60th day for requesting a hearing was December 1, the date of the telephone conversation. The board did not find that the ombudsman told claimant that the last day to file the request for hearing was December 1, 2014.

         On December 3, 2014, claimant sent a second certified letter to the department, which reached the ombudsman on December 5, 2014. The letter was entitled "Appeal and Object." It stated claimant's objections to the July 31, 2014, notice of closure and the notice of suspension of benefits, and asked for "help with processes." But once again, the letter made no mention of the denial and did not explicitly request a hearing. On December 5, the ombudsman hand delivered both of claimant's letters to the board, along with the ombudsman's own letter explaining her understanding that claimant intended by the letters to contest the denial of the new/omitted condition claim. By ...


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