Department of Consumer & Business Services v. Muliro

380 P.3d 270, 359 Or. 736, 2016 Ore. LEXIS 368
CourtOregon Supreme Court
DecidedJune 16, 2016
DocketWCB 103496, 1102720; CA A152594; SC S062922
StatusPublished
Cited by63 cases

This text of 380 P.3d 270 (Department of Consumer & Business Services v. Muliro) is published on Counsel Stack Legal Research, covering Oregon Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Department of Consumer & Business Services v. Muliro, 380 P.3d 270, 359 Or. 736, 2016 Ore. LEXIS 368 (Or. 2016).

Opinion

*738 NAKAMOTO, J.

Under the Workers’ Compensation Act, an injured worker with more than one employer may be entitled to receive supplemental temporary disability benefits from the Workers’ Benefit Fund, in addition to the disability benefits the worker receives from the employer’s insurer. The injured worker cannot qualify “unless the insurer **⅜ receives,” within 30 days of receipt of an initial claim, “notice that the worker was employed in more than one job” at the time of injury. QRS 656.210(2)(b)(A). The question in this case is whether an injured worker must provide actual notice of the worker’s secondary employment in connection with the claims process or whether the employer’s preexisting knowledge of that employment may be imputed to the insurer to satisfy the notice requirement of ORS 656.210(2)(b)(A). We hold that the correct interpretation of ORS 656.210(2)(b)(A) requires a claimant to prove that the insurer received actual notice of the claimant’s secondary employment within 30 days of the insurer’s receipt of the initial claim.

I. BACKGROUND

We take the historical facts, which are undisputed, from the findings of the Workers’ Compensation Board in its order on review. While claimant was employed by Adams & Gray Home Care - Marquis Home Health (Adams & Gray) as a certified nursing assistant, she sustained a workplace injury.

At that time, claimant also worked for two other home health employers, and Adams & Gray was aware of that fact. Two coordinators at Adams & Gray responsible for scheduling claimant’s work hours, claimant’s supervisors, knew of her secondary employment because claimant would at various times let a supervisor know, when asked to handle a placement, that she was already scheduled by another agency.

Claimant promptly sought workers’ compensation benefits for her injury. She filed a workers’ compensation claim, which Adams & Gray’s insurer, Liberty Northwest Insurance Corporation (Liberty), received less than a week *739 later. As part of her claim, claimant filled out and signed several workers’ compensation benefits forms that were submitted to Liberty—a Liberty claim form (Form 801) and a Department of Consumer and Business Services (DCBS) “Worker’s and Physician’s Report for Workers’ Compensation Claims” form (Form 827). On each form, there was a box above the signature line labeled either “Check here if you are employed w/more than one employer” or “Check here if you have more than one employer.” Claimant did not check the boxes on those forms that would have indicated that she had more than one employer. Form 801 contained Liberty’s mailing address, telephone number, and fax number, and Form 827 provided a telephone number to call in case the claimant did not “know the name and address of the insurer.”

Claimant gave a recorded statement to a claims investigator less than two weeks after she had filed her claim. Claimant told the investigator that Adams & Gray usually gave her 40 hours of work per week. The investigator did not ask claimant whether she had other employers while working for Adams & Gray, and claimant did not volunteer that information. Within 30 days of filing her claim, neither claimant nor Adams & Gray had informed Liberty that claimant had secondary employment, and Liberty was unaware of that fact.

Approximately nine months after her injury, claimant informed Liberty through counsel that she had had multiple employers at the time of her injury and requested supplemental temporary disability benefits. Liberty elected not to process the claim for supplemental disability benefits, so DCBS, through its assigned processing administrator, ComPro, Inc., did so. 1 ComPro denied claimant’s request on the ground that claimant was ineligible for those benefits because Liberty had not received timely notice of claimant’s secondary employment, as required by ORS 656.210(2)(b)(A).

*740 Subsequently, claimant requested a hearing before the board’s Hearings Division. Based on Adams & Gray’s knowledge of claimant’s secondary employment and the reasoning of an earlier board decision, the administrative law judge (AL J) concluded that Liberty had received timely notice of claimant’s secondary employment. The ALJ determined that claimant was eligible for supplemental disability benefits and ordered ComPro to process claimant’s claim. DCBS and ComPro sought board review of that decision, and the board affirmed the AL J’s order. The board concluded that “the ‘notice’ requirement of ORS 656.210(2)(b)(A) has been met when the employer receives information regarding secondary employment.”

The board acknowledged that the express language of the statute provides that notice must be received by the “insurer” and that an “employer (unless it is self-insured) has no express statutory obligation to pass information/ knowledge to its insurer or statutory administrator, and no responsibilities under the Director’s rules for processing supplemental disability claims.” But, the board stated that it is “well settled that, with respect to the processing of claims, notice provided by a claimant to an insured employer may be imputed to the insurer.” According to the board, even if claimant had the burden to provide notice of secondary employment, “ [claimant did provide the information, albeit to [Adams & Gray],” and the “issue of whether [the required] information should be imputed from [Adams & Gray] to [Liberty] is a matter distinct from the express statutory language.” (Footnote omitted; emphasis in original.) As support, the board cited three Court of Appeals cases “dealing with ‘imputation’ between an employer and its insurer”: Anfilofieff v. SAIF, 52 Or App 127, 627 P2d 1274 (1981); Nix v. SAIF, 80 Or App 656, 723 P2d 366, rev den, 302 Or 158 (1986); and SAIF v. Abbott, 103 Or App 49, 796 P2d 378 (1990), modified on recons, 107 Or App 53, 810 P2d 878 (1991). Underlying the board’s decision was its concern that it should not interpret the statutory scheme in a way that “would allow an employer to nullify a supplemental disability claim by simply refraining from forwarding otherwise timely received supplemental disability information to its insurer.”

*741 DCBS, with Liberty and Adams & Gray joining, sought judicial review in the Court of Appeals. DCBS argued that, under the express terms of ORS 656.210(2)(b)(A), what a claimant must provide, and the insurer must receive, is “actual notice.” The Court of Appeals agreed that ORS 656.210

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Williams
374 Or. 648 (Oregon Supreme Court, 2025)
Dept. of Human Services v. M. G. J.
374 Or. 228 (Oregon Supreme Court, 2025)
State v. J. B.
569 P.3d 226 (Court of Appeals of Oregon, 2025)
Mohiadeen v. Washington County Sheriff's Office
338 Or. App. 29 (Court of Appeals of Oregon, 2025)
Progressive Universal Ins. Co. v. Voyles
563 P.3d 371 (Court of Appeals of Oregon, 2025)
State v. Amoroso
562 P.3d 641 (Court of Appeals of Oregon, 2024)
Roberts v. City of Cannon Beach (A184314)
557 P.3d 1143 (Court of Appeals of Oregon, 2024)
State v. Azar
Oregon Supreme Court, 2024
State v. Bryant
Court of Appeals of Oregon, 2024
State v. Hubbell
537 P.3d 503 (Oregon Supreme Court, 2023)
TruNorth Warranty Plans of North America v. DCBS
536 P.3d 24 (Court of Appeals of Oregon, 2023)
State v. A. R. H.
530 P.3d 897 (Oregon Supreme Court, 2023)
Cantu v. Progressive Classic Ins. Co.
Court of Appeals of Oregon, 2023
State v. Aguilera
526 P.3d 1206 (Court of Appeals of Oregon, 2023)
Lee (House of R.E.A.P.) v. Secretary of State
526 P.3d 775 (Court of Appeals of Oregon, 2023)
Dahlton v. Kyser
513 P.3d 598 (Oregon Supreme Court, 2022)
SAIF v. Ward
506 P.3d 386 (Oregon Supreme Court, 2022)
Kaser v. PERS
506 P.3d 1134 (Court of Appeals of Oregon, 2022)
SAIF v. Coria
500 P.3d 42 (Court of Appeals of Oregon, 2021)

Cite This Page — Counsel Stack

Bluebook (online)
380 P.3d 270, 359 Or. 736, 2016 Ore. LEXIS 368, Counsel Stack Legal Research, https://law.counselstack.com/opinion/department-of-consumer-business-services-v-muliro-or-2016.