Jordan v. SAIF Corp.

167 P.3d 451, 343 Or. 208, 2007 Ore. LEXIS 810
CourtOregon Supreme Court
DecidedAugust 30, 2007
DocketAgency 00-0051M; CA A116152; SC S53844
StatusPublished
Cited by8 cases

This text of 167 P.3d 451 (Jordan v. SAIF Corp.) 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
Jordan v. SAIF Corp., 167 P.3d 451, 343 Or. 208, 2007 Ore. LEXIS 810 (Or. 2007).

Opinion

*210 DE MUNIZ, C. J.

This case concerns the scope of the Workers’ Compensation Board’s (board) power under its “own motion” authority, pursuant to ORS 656.278. Specifically, we must determine whether the board’s own-motion authority includes the power to suspend temporary disability payments when a claimant fails to comply with the physical therapy recommendations of his treating physician. Because the own-motion statutory provision does not explicitly list suspension among the powers granted to the board, and because another provision of the workers’ compensation scheme governs suspension specifically, we conclude that the board does not have the authority under ORS 656.278 to suspend a claimant’s temporary disability payments for failure to cooperate with physical therapy recommendations.

Before we set forth the factual background, we begin by outlining the statutory scheme in some detail. The workers’ compensation scheme includes three phases:

“The first phase begins when the worker is injured and initiates a claim. See ORS 656.262-656.270 (describing procedures for asserting claims for compensation for workplace injuries and for closure of claims). The second phase is the aggravation period, during which the worker may seek additional benefits for ‘worsening conditions’ resulting from the original injury during a five-year period after the injury. See ORS 656.273 (describing aggravation benefits and providing that claim for aggravation must be filed within five years). The third phase is known as own-motion authority, pursuant to which the board may reconsider and adjust an earlier award, even after the five-year aggravation period has ended.”

Dougan v. SAIF, 339 Or 1, 4, 115 P3d 242 (2005). This case concerns the third phase, the board’s own-motion authority. ORS 656.278 (1999), 1 which governed the board’s own-motion jurisdiction in this case, provided, in part:

*211 “(1) Except as provided in subsection (6) of this section, the power and jurisdiction of the Workers’ Compensation Board shall be continuing, and it may, upon its own motion, from time to time modify, change or terminate former findings, orders or awards if in its opinion such action is justified in those cases in which:
“(a) There is a worsening of a compensable injury that requires either inpatient or outpatient surgery or other treatment requiring hospitalization. In such cases, the board may authorize the payment of temporary disability compensation from the time the worker is actually hospitalized or undergoes outpatient surgery until the worker’s condition becomes medically stationary, as determined by the board; or
“(b) The date of injury is earlier than January 1,1966. In such cases, in addition to the payment of temporary disability compensation, the board may authorize payment of medical benefits.” 2

*212 (Emphases added.) That statute does not use the word “suspend” in describing the board’s authority with respect to temporary disability benefits; instead, ORS 656.278(1) permits the board to “modify, change, or terminate” former findings or awards and to “authorize the payment of temporary disability benefits.” Despite the lack of explicit suspension authority in ORS 656.278(1), the board promulgated a rule to govern the suspension of benefits, pursuant to the rulemak-ing authority outlined in ORS 656.726(5) (1999). 3 That rule provided, in part:

“If the own motion insurer believes that temporary disability compensation should be suspended for any reason, the insurer may make a written request for such suspension. * * * The insurer shall not suspend compensation under this section without prior written authorization by the Board.”

OAR 438-012-0035(5) (1997). 4 Under the board’s rule, therefore, the insurer must request the board’s authorization to suspend benefits awarded pursuant to the board’s own-motion authority.

*213 A specific provision of the workers’ compensation statute itself, however, governs suspension of temporary disability benefits when a worker fails to comply with certain medical recommendations. That provision directs an insurer to obtain the consent of the Director of the Department of Consumer and Business Services (director) to suspend benefits for failure to cooperate with the recovery process:

“For any period of time during which any worker commits insanitary or injurious practices which tend to either imperil or retard recovery of the worker, or refuses to submit to such medical or surgical treatment as is reasonably essential to promote recovery, or fails to participate in a program of physical rehabilitation, the right of the worker to compensation shall be suspended with the consent of the director and no payment shall be made for such period. The period during which such worker would otherwise be entitled to compensation may be reduced with the consent of the director to such an extent as the disability has been increased by such refusal.” 5

ORS 656.325(2) (1999) (emphases added).

With that statutory scheme in mind, we now turn to the pertinent facts of this case. In 1986, Jordan (claimant) injured both knees while working for his former employer. He sought and obtained workers’ compensation benefits. His initial claim was closed in 1987, and his aggravation rights expired in 1992. In February 2000, claimant requested that the board reopen his claim, pursuant to its “own motion” authority under ORS 656.278, because claimant required knee surgery and sought temporary total disability payments. The board reopened the claim. Claimant had surgery on both knees. Claimant’s treating physician, Dr. Edelson,

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Bluebook (online)
167 P.3d 451, 343 Or. 208, 2007 Ore. LEXIS 810, Counsel Stack Legal Research, https://law.counselstack.com/opinion/jordan-v-saif-corp-or-2007.