Kachel v. Weyerhaeuser Co.

150 P.3d 16, 210 Or. App. 46, 2006 Ore. App. LEXIS 1962
CourtCourt of Appeals of Oregon
DecidedDecember 20, 2006
Docket02-08262, 02-06416; A127115
StatusPublished
Cited by1 cases

This text of 150 P.3d 16 (Kachel v. Weyerhaeuser Co.) 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
Kachel v. Weyerhaeuser Co., 150 P.3d 16, 210 Or. App. 46, 2006 Ore. App. LEXIS 1962 (Or. Ct. App. 2006).

Opinion

HASELTON, P. J.

Claimant seeks judicial review of an order of the Workers’ Compensation Board that affirmed insurer’s denial of claimant’s claim on the ground that claimant had not timely appealed from the denial and had not shown good cause for extending the time for filing a request for a hearing. ORS 656.319(1).1 On judicial review, claimant asserts that (1) the board erred in upholding the denial without first determining whether a new or omitted medical condition “claim” had even been filed and (2) substantial evidence and substantial reason do not support the board’s conclusion that claimant did not show good cause for extending the time for filing a request for a hearing. For the reasons set forth below, we affirm.

The following facts, which are derived from the board’s order, are supported by substantial evidence in the record. Claimant was compensably injured in 1981, when he received a shock to his left arm, and again in 1988, when he suffered an injury to his back. Both claims were accepted and ultimately closed in 1981 and 1991, respectively. In March 2002, claimant’s treating physician sent chart notes and “Form 827” to insurer, requesting an MRI because claimant was experiencing a worsening of symptoms relating to his current cervical condition.

Insurer treated the physician’s submissions as a claim for medical services and issued two denials, denying the condition’s relationship to either the 1981 claim or the 1988 claim. Those denials, dated June 26, 2002, were mailed together in an envelope to claimant’s attorney, and a copy of both denials also was sent in a separate envelope to claimant. Although claimant was aware of both denials, claimant’s [49]*49attorney was only aware of the denial concerning the 1981 claim, apparently due to clerical error. Claimant’s attorney timely requested a hearing regarding the 1981 claim. However, claimant’s attorney did not become aware of the denial concerning the 1988 claim until September 16, 2002, and requested a hearing on the 1988 claim on October 30, 2002.

Both matters were heard together. The administrative law judge upheld insurer’s denial concerning claimant’s current condition as related to the 1981 claim, and concluded that claimant’s request for hearing of the denial relating to the 1988 claim was time-barred under ORS 656.319(1). Claimant appealed to the board, which affirmed in part and reversed in part, agreeing, as pertinent here, that claimant’s challenge to the denial relating to the 1988 claim was time-barred.2

On judicial review, claimant makes two arguments. First, claimant asserts the board erred in concluding that the challenge was time-barred, because insurer’s denial was not a valid denial; thus, under Knapp v. Weyerhaeuser Co., 93 Or App 670, 673 P2d 746 (1988), rev den, 307 Or 326 (1989), the challenge was not subject to the time limitations prescribed in ORS 656.319(1). Second, claimant argues that, even if ORS 656.319(1) applies, the board’s conclusion that claimant did not have “good cause” for filing within the 60-day limit is not supported by substantial evidence or substantial reason. We reject both contentions.

We first consider claimant’s argument that ORS 656.319(1) does not apply under these circumstances. Claimant asserts that ORS 656.319(1) applies only when there has been a “claim,” and that here there was no predicate claim. In particular, claimant argues that insurer erroneously treated his physician’s “Form 827” and chart notes as a “claim.” Claimant further argues that under ORS 656.267(1), a “claim” for a new or omitted medical condition is not made until a claimant “clearly request [s] formal written acceptance of a new medical condition or an omitted medical condition.” [50]*50Claimant argues that “Form 827” did not constitute a sufficiently “clear request” that insurer accept a “claim,” relying on Basmaci v. The Stanley Works, 187 Or App 337, 340, 67 P3d 433 (2003).

We disagree that the submission of the Form 827 did not constitute a “claim” for purposes of ORS 656.319(1) under these circumstances. Form 827 has two parts. The top half, filled out by claimant in March 2002, described the “date of injury” as “11/10/1988.” That part of the form specifically provided, “By my signature I am giving NOTICE OF CLAIM,” and farther contained the instruction, “This is your receipt, when signed by you, that you gave notice of a claim. Do not sign if you do not intend to make a claim.” Claimant signed the top half of the form. The bottom half was completed by claimant’s doctor in March 2002, describing claimant’s symptoms and diagnosis, requesting preauthorization of an MRI, and checking a box for “temporary disability authorization.” The bottom of the form contained an instruction that it “must be mailed to the insurer within 72 hours after the worker’s first visit.”

In Basmaci, we upheld the board’s conclusion that “Form 827 did not fulfill the requirements for a new medical condition claim [under ORS 656.262(7)(a) (1997)] and therefore did not trigger employer’s obligation to pay interim compensation.” 187 Or App at 339. In particular, we relied on the fact that the provisions of ORS 656.262(7) (1997) pertaining to new or omitted condition claims specified that the “claim must ‘clearly request formal written acceptance’ of the condition.” Id. at 340. Because the form at issue in that case contained no request for formal written acceptance of a condition, we concluded that it did not constitute a new or omitted condition claim. Id. We noted, however, that “the Form 827 would likely suffice as a claim in some contexts.” Id. (emphasis added).

Thus, Basmaci supports a conclusion that the Form 827 submitted by claimant’s physician in the present case would not, in itself, suffice as a claim for a new or omitted medical condition.3 It does not follow, however, that Form [51]*51827, and insurer’s response to it, are a nullity for purposes of ORS 656.319(1). See OAR 436-060-0140(3) (insurer must give the claimant written notice of acceptance or denial of a claim within certain time frames after insurer’s receipt of a signed Form 827); OAR 436-060-0010(2) (“[t]he signed Form 827 shall start the claim process”).

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Cite This Page — Counsel Stack

Bluebook (online)
150 P.3d 16, 210 Or. App. 46, 2006 Ore. App. LEXIS 1962, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kachel-v-weyerhaeuser-co-orctapp-2006.