Hammock v. SAIF Corp.

108 P.3d 1185, 198 Or. App. 480, 2005 Ore. App. LEXIS 327
CourtCourt of Appeals of Oregon
DecidedMarch 23, 2005
Docket01-07092; A120640
StatusPublished

This text of 108 P.3d 1185 (Hammock v. SAIF Corp.) 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
Hammock v. SAIF Corp., 108 P.3d 1185, 198 Or. App. 480, 2005 Ore. App. LEXIS 327 (Or. Ct. App. 2005).

Opinion

WOLLHEIM, P. J.

Claimant seeks judicial review of a Workers’ Compensation Board order denying him temporary disability benefits as of August 3, 2001. We review for errors of law, ORS 656.298(7); ORS 183.482(8), and affirm.

Claimant, a truck driver for H & R Baling (employer), suffered a compensable left shoulder injury in December 2000. SAIF, employer’s insurer, accepted the claim. On June 1,2001, after a tear in claimant’s left rotator cuff tendon had been surgically repaired, claimant’s physician released claimant to modified work at S & J Thrift Center (S & J) under the restriction that claimant could sort only small and light items. On June 6,2001, claimant began working for S&J.

On July 6, claimant’s physician released claimant to return to modified work. The physician allowed claimant to lift 25 to 30 pounds and did not restrict him from lifting above shoulder level. Claimant returned to work for employer. On July 19 and 23, claimant was treated for an exacerbation of his injury. Also, on July 23, claimant’s physician determined that claimant should return to the more restricted light-duty work that he had engaged in before being released to return to modified work for employer. Thereafter, on July 26, claimant accepted a written offer of modified employment at S & J.

On July 30, 2001, Senate Bill (SB) 485 became effective. See Or Laws 2001, ch 865. That bill amended ORS 656.268(4) to allow a worker to refuse an offer of modified employment without termination of his or her temporary total disability benefits if the offer “[i] s not with the employer at injury,” ORS 656.268(4)(c)(C), or “[i]s not at a work site of the employer at injury,” ORS 656.268(4)(c)(D).1

On August 2, claimant’s physician revised claimant’s work restriction, indicating that claimant could not use [483]*483his left arm at or above shoulder level. Thereafter, claimant refused to continue the modified work available at S & J.

In its order denying claimant temporary total disability benefits, the board reasoned:

“On June 1, 2001, [claimant’s physician] released claimant for modified work at [S & J]. Claimant commenced work at S & J on June 6, 2001. On August 2, 2001, [claimant’s physician] revised claimant’s work restriction such that he could not use his left arm at or above shoulder height. Thereafter, claimant declined to continue the modified work available at S & J.
“In Gerardo Cruz-Lopez, 54 Van Natta 1716, 1719 (2002), we held that the amendments made to ORS 656.268(4) by SB 485 apply to modified job offers made after July 30, 2001.
‘We have previously addressed this issue in Penny G. Elliott, 53 Van Natta 575 (2001)[, affd, Elliott v. SAIF, 182 Or App 384, 52 P3d 447 (2002)]. There, the attending physician released the claimant to modified work and approved [484]*484a modified job description for work at the same alternative work site (S&J) as the present case. Analyzing the text and context of ORS 656.268(4)(c) (1999), we concluded the statute did not necessarily require that the claimant ‘return to modified work’ for the employer at injury. 53 Van Natta at 576. Further finding that an offer of modified work at the thrift center was, in fact, a legitimate job, we concluded that the modified work offered at the alternative work site was appropriate ‘modified employment’ pursuant to ORS 656.268(4) (1999). 53 Van Natta at 577.
“Here, it is uncontested that claimant’s ‘physician-approved’ modified job was at the same alternative work site to which the claimant in Elliott was released. Furthermore, claimant does not dispute that our decision in Elliott is controlling. Accordingly, we reject claimant’s assertion that the job at S&J did not qualify as ‘modified work’ under ORS 656.268(4) (1999).”

On review, claimant’s first assignment of error is that the board erred in failing “to order the insurer to pay time loss to Petitioner commencing August 3, 2001.” Claimant asserts that the 2001 amendments to ORS 656.268(4) were procedural in nature and, for that reason, applied to all cases after their effective date (i.e., July 30, 2001). Claimant contends that, because he “received no offer to work for his employer, H & R Bailing, [sic] after his doctor changed his restrictions on August 2, 2001,” and “[t]he only offer for work involved activities ‘not with the employer at injury’ at S & J,” the modified employment with S&J was unsuitable and the 2001 amendments gave him “sole discretion” to “refuse unsuitable work at any time after the bill was signed.”3 Claimant also assigns as error the board’s failure “to assess penalties pursuant to ORS 656.262(11) against the insurer for its unreasonable refusal to pay time loss benefits.”

[485]*485In response, SAIF argues that, because the 2001 amendments were substantive in nature, ORS 656.202(2) requires the application of the law in effect at the time of the injury giving rise to claimant’s right to compensation.4 In other words, according to SAIF, the 2001 amendments do not apply in this case. Additionally, SAIF asserts that ORS 656.325(5)(a) (1999) provided “independent authority for SAIF’s refusal to pay the additional time loss demanded by claimant in this case regardless of whether the 2001 amendments to ORS 656.268(4)(c) also apply.”

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51 P.3d 5 (Court of Appeals of Oregon, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
108 P.3d 1185, 198 Or. App. 480, 2005 Ore. App. LEXIS 327, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hammock-v-saif-corp-orctapp-2005.