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In re Compensation of Eggert

Court of Appeals of Oregon

December 11, 2019

In the Matter of the Compensation of Nancy E. Eggert, Claimant. Nancy E. EGGERT, Petitioner,
v.
SAIF CORPORATION and The Adobe Motel, Inc., Respondents.

          Argued and submitted November 28, 2018

          Workers' Compensation Board 1600198

          Julene Quinn argued the cause and fled the briefs for petitioner.

          Julie Masters argued the cause and fled the brief for respondents.

          Before Powers, Presiding Judge, and Egan, Chief Judge, and Landau, Senior Judge. [*]

         Case Summary:

         Claimant seeks judicial review of an order of the Workers' Compensation Board determining that SAIF, which had accepted claimant's knee injury claim "contingent on the outcome" of appeal, was not required to issue a modified notice of acceptance of claimant's knee injury claim after exhausting its challenges to the claim's compensability. Claimant contends that SAIF was required to issue a modified notice of acceptance removing the contingency and that its failure to do so in response to claimant's request for clarification of the notice of acceptance constituted a de facto denial of the claim. Held: A claim may be accepted contingently pending appeal. When litigation is finally concluded, the acceptance becomes final and the contingency falls away as a matter of law. Thus, after SAIF had exhausted its challenges to compensability, it did not need to issue an updated notice accepting the claim without the contingency. SAIF's failure to respond to claimant's request for clarification of the notice of acceptance did not constitute a de facto denial of the claim.

         [301 Or.App. 178] EGAN, C. J.

         Claimant seeks judicial review of an order of the Workers' Compensation Board determining that SAIF was not required to issue a modified notice of acceptance of claimant's knee injury claim after SAIF exhausted its challenges to the compensability of the claim. Claimant's petition raises a legal issue that we review for errors of law. ORS 183.482(8)(a). We conclude that the board did not err and affirm.

         We draw the facts, which are largely procedural and undisputed, from the board's order. Claimant injured her knee at work and filed a claim for a left medial meniscus tear, which SAIF denied. An administrative law judge (ALJ) set aside SAIF's denial, and SAIF appealed to the board.

         Pending appeal to the board, and in compliance with the ALJ's order, SAIF issued an Initial Notice of Acceptance, which listed "left medial meniscus tear" as a "contingent accepted medical condition." The Initial Notice of Acceptance also stated:

         "SAIF's acceptance of these conditions * * * is contingent on the outcome of the appeal." The board affirmed the ALJ's order setting aside SAIF's denial.

         SAIF then closed the claim with an award of permanent impairment and, as required by OAR 436-030-0015, SAIF issued an Updated Notice of Acceptance at Closure, which described the accepted condition as "left medial meniscus tear."[1] The notice of closure also stated, "SAIF's [301 Or.App. 179] acceptance of these conditions has been challenged on appeal, and the acceptance of these conditions is contingent on the outcome of the appeal." The notice said that SAIF was not required to pay disability compensation "unless and until the condition is found to be compensable after all litigation is final." See ORS 656.313(1) (payment of some benefits stayed pending appeal).

         Shortly thereafter, SAIF filed a petition for judicial review of the board's order. On SAIF's motion, we subsequently dismissed the petition, and SAIF paid the permanent impairment award.

         Claimant then asked SAIF to provide a "clarified Notice of Acceptance" that did not include the statement that SAIF's acceptance was contingent on the outcome of litigation.[2] At that time, the determination of compensability [301 Or.App. 180] had become final, the claim had been closed, and claimant's benefits for impairment had been paid.[3]

         SAIF did not respond to claimant's request to clarify the notice of acceptance, and claimant requested a hearing, asserting a "de facto denial/challenge to Notice of Acceptance/medical services." The parties presented their positions to the ALJ in writing. The ALJ concluded that SAIF was not required to amend its notice of acceptance, and claimant appealed to the board.

         Citing our opinion in Crawford v. SAIF, 241 Or.App. 470, 480, 250 P.3d 965 (2011), the board determined that SAIF was required to respond to claimant's request for clarification by revising the notice of acceptance or by making "other relevant clarification," but that it was not required to issue a new notice of acceptance. In Crawford, we addressed the requirements of ORS 656.262(6)(d) and ORS 656.267, [4] [301 Or.App. 181] as related to omitted condition claims, and explained that the nature of a claimant's request will dictate the response required from the insurer. When a claimant expressly seeks to have an omitted condition accepted, the insurer must respond by processing an omitted condition claim pursuant to ORS 656.262(7)(a), by either accepting or denying the claim within 60 days. Id. When, however, "the worker seeks a mere clarification of a notice of acceptance," the insurer's obligation to respond within 60 days under ORS 656.262 (6)(d) may be satisfied either by revising the notice of closure or by making other relevant clarification, including by a letter explaining what conditions are accepted. Id.

         The board here determined that, because claimant's request sought only a clarification of the notice of acceptance and was not a request for acceptance of a new or omitted condition, it did not trigger an obligation to issue a new notice of acceptance or denial, but it did require a response by one of the two methods described in Crawford. The board concluded that, because SAIF failed to so respond, ...


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