Fred Meyer, Inc. v. Bundy

978 P.2d 385, 159 Or. App. 44, 1999 Ore. App. LEXIS 403
CourtCourt of Appeals of Oregon
DecidedMarch 17, 1999
Docket95-07510; CA A95905
StatusPublished
Cited by11 cases

This text of 978 P.2d 385 (Fred Meyer, Inc. v. Bundy) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fred Meyer, Inc. v. Bundy, 978 P.2d 385, 159 Or. App. 44, 1999 Ore. App. LEXIS 403 (Or. Ct. App. 1999).

Opinions

[47]*47EDMONDS, J.

Employer seeks review of a Workers’ Compensation Board (Board) order ruling that claimant is entitled to temporary disability benefits as of May 11, 1993. We review for errors of law, ORS 656.298(7) and ORS 183.482(8), and reverse.

Claimant has a compensable right wrist condition. The claim was initially closed in 1992. In May 1993, claimant filed an aggravation claim and a request for surgery, which employer denied. The denial was set aside by the Hearings Division, and employer appealed to the Board, which affirmed. That order has become final. In May 1995, claimant requested temporary disability benefits. On May 24, 1995, claimant’s attending physician authorized the payment of temporary partial disability (TPD) compensation from November 1992 through April 1995. Employer acknowledged receipt of the authorization, but paid no TPD. In August 1995, employer issued a notice of closure that was subsequently affirmed on reconsideration. The order awarded TPD from April 25,1995, to August 3,1995, the date that claimant had become medically stationary. Claimant requested a hearing on the order on reconsideration, arguing that he was entitled to TPD beginning on May 11, 1993, the date the aggravation claim was made. The Board agreed with claimant’s argument, and employer seeks review.

Employer argues that:

“The 1995 Legislature determined, by enacting ORS 656.262(4)(g),

In response to employer’s argument, claimant asserts:

“The changes made to Chapter 656 by Oregon Law 1995, Chapter 332 should not be retroactively applied to this claim. However, if the provisions of Oregon Laws 1995, Chapter 332 are applicable, the 1995 revisions to ORS 656.262 did not eliminate the distinction between procedural and substantive temporary disability. Even if the amendments did abolish the distinction, the limitation on retroactive authorization does not apply to the present case where the claimant had been seen by the attending physician for several years. The legislature intended to prohibit retroactive authorization for cases involving initial claims. In the present case, the worker had seen his attending physician to obtain ongoing treatment for the same condition for a period of five years.”

1. The meaning of ORS 656.262(4)(g) is the focal point of the parties’ arguments. It provides:

“Temporary disability compensation is not due and payable pursuant to ORS 656.268 after the worker’s attending physician ceases to authorize temporary disability or for any period of time not authorized by the attending physician. No authorization of temporary disability compensation by the attending physician under ORS 656.268 shall be effective to retroactively authorize the payment of temporary disability more than 14 days prior to its issuance.”

ORS 656.262(4)(g) was enacted by the legislature in 1995. Senate Bill 369; Or Laws 1995, ch 332. ORS 656.262(4)(g) was enacted while this claim was in litigation. Therefore, the amendment applies. Jensen v. Conagra, Inc., 152 Or App 449, 954 P2d 822 (1998);2 Volk v. America West [49]*49Airlines, 135 Or App 565, 899 P2d 746 (1995), rev den 322 Or 645 (1996).

The remaining issue in this case is whether ORS 656.262(4)(g) applies to only procedural obligations to pay temporary disability while a claim is open, or whether it also applies to the substantive entitlement to benefits at claim closure. The Board ruled that ORS 656.262(4)(g) is only an additional requirement for the authorization of procedural temporary disability compensation during an open claim. It reasoned that, because the terms in the statute are in the present tense and thereby address the contemporaneous payment of compensation while the claim is in open status, it follows that the statute does not apply to awards of temporary disability made at the time of closure. The Board noted that a claimant’s entitlement to temporary disability benefits under ORS 656.210 and ORS 656.212 was not amended in 1995 in any way that was material to the meaning of ORS 656.262(4)(g) and that neither ORS 656.210 nor ORS 656.212 contains any language that limits a worker’s substantive entitlement to temporary disability to only those periods for which there has been contemporaneous authorization by the attending physician. Based on that reasoning, the Board concluded that ORS 656.262(4)(g)’s restriction on the authorization of temporary disability benefits was inapplicable to claimant’s claim for substantive temporary disability benefits.

The pertinent statutes are reasonably susceptible to the construction given to them by the Board. However, that conclusion does not end the inquiry. In interpreting a statute, our task is to discern the intent of the legislature. ORS 174.020. The text of the statutory provision itself is the starting point for interpretation because it is the best evidence of the legislature’s intent.

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Fred Meyer, Inc. v. Bundy
978 P.2d 385 (Court of Appeals of Oregon, 1999)

Cite This Page — Counsel Stack

Bluebook (online)
978 P.2d 385, 159 Or. App. 44, 1999 Ore. App. LEXIS 403, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fred-meyer-inc-v-bundy-orctapp-1999.