Lopez v. SAIF Corp.

388 P.3d 728, 281 Or. App. 679, 2016 Ore. App. LEXIS 1318
CourtCourt of Appeals of Oregon
DecidedOctober 19, 2016
Docket1301036; A155791
StatusPublished
Cited by1 cases

This text of 388 P.3d 728 (Lopez 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
Lopez v. SAIF Corp., 388 P.3d 728, 281 Or. App. 679, 2016 Ore. App. LEXIS 1318 (Or. Ct. App. 2016).

Opinion

EGAN, J.

Claimant seeks review of an order of the Workers’ Compensation Board, asserting that the board erred in concluding that employer did not know of claimant’s claims for injuries within 90 days of their occurrence and that claimant did not satisfy the 90-day notice requirement under ORS 656.265(4)(a) for making a timely claim. In the alternative, claimant asserts that the board erred in its determination that claimant did not have good cause to file a claim after the 90-day notice requirement in accordance with ORS 656.265C4XC).1 We conclude on review under ORS 183.482(8) that the board did not err in concluding that the claim was untimely, because employer did not have knowledge of claimant’s injury under ORS 656.265(4)(a). However, the board mistakenly applied an incorrect legal standard in determining that claimant did not have good cause to file an untimely claim under ORS 656.265(4)(c), and thereby abused its discretion. See ORS 183.482 (8)(b)(A). Accordingly, we reverse and remand this case for reconsideration of good cause under the correct legal standard.

The board adopted and affirmed the order of the administrative law judge (ALJ) with supplementation. Claimant lives in Woodburn and worked as a Family Advocate in employer’s Mulino Head Start office. She assisted pre-kindergarten students and their parents with issues of food, clothing, shelter, and health care, and she used her own vehicle to make home visits for that purpose. Claimant worked irregular hours. For example, the week of [681]*681the injury, she left work at 6:15 p.m. on Monday, at 2:45 p.m. on Tuesday, and at 3:15 p.m. on Wednesday, the date of the injury.

On Tuesday, June 5, 2012, claimant had obtained immunization records from the parent of a Head Start student, who lives in Hubbard. Claimant was going to return the immunization records the following day. On Wednesday, June 6, 2012, claimant left work at 3:15 p.m. She was in a motor vehicle accident at 3:40 p.m., when her vehicle was struck by another vehicle on Highway 211 west of Molalla. Claimant’s vehicle was completely destroyed, and she was transported from the scene by life-flight to OHSU, where she was admitted for injuries to her face, neck, shoulders, upper back, and abdomen. In her vehicle, claimant had the immunization records that she was going to return to the parent of the Head Start student and her bag, which held forms and other work supplies.

The day after the accident, while claimant was in the hospital, claimant’s supervisor from another office, Swain, visited claimant for about 30 minutes. She inquired of claimant where claimant was headed at the time of the accident and claimant told her that she was headed home and that she was not on work time. Swain testified that she had no information at that time that the injury was work related.

Claimant testified that, at the time of Swain’s visit, she did not remember the intended visit to the student’s home and that the memory of the purpose of her trip did not return to her until September 2012, when she found paperwork documenting the intended trip in a basket that a coworker brought to her containing items from her work desk.

Within one year of the date of the accident, Swain, who had visited claimant in the hospital, completed an incident report form indicating that the incident was reported on December 18, 2012, and that the report had been delayed because claimant originally said that the accident was not on work time. On January 15, 2013, claimant completed an “Employee Incident Report Form” and filed a workers’ compensation claim for injuries caused by the motor vehicle [682]*682accident. Employer denied the claim as untimely and on the basis that the injury did not arise out of or in the course of employment.

When a claimant has not given notice of a claim within the 90-day period provided in ORS 656.265(1), the timeliness of the claim under ORS 656.265(4)(a) depends on whether the employer had “knowledge of the injury” within the 90-day period. In Argonaut Ins. v. Mock, 95 Or App 1, 5, 768 P2d 401, rev den, 308 Or 79 (1989), we described “knowledge of the injury” for purposes of ORS 656.265(4) as knowledge

“sufficient [ly] reasonable] to meet the purposes of prompt notice of an industrial accident or injury. If an employer is aware that a worker has an injury without having any knowledge of how it occurred in relation to the employment, there is no reason for the employer to investigate or to meet its responsibilities under the Workers’ Compensation Act. Actual knowledge by the employer need not include detailed elements of the occurrence necessary to determine coverage under the act. However, knowledge of the injury should include enough facts as to lead a reasonable employer to conclude that workers’ compensation liability is a possibility and that further investigation is appropriate.”

As we held in Keller v. SAIF, 175 Or App 78, 83, 27 P3d 1064 (2001), the required knowledge includes knowledge of fact of the injury as well as its possible relationship to the employment. The ALJ found that employer knew when and where the accident occurred but also found that employer did not have sufficient knowledge that claimant’s accident was possibly work related.

The board adopted and affirmed the ALJ’s order, reasoning similarly that claimant’s statement to Swain at the hospital gave employer no reason to conclude that workers’ compensation liability was a possibility. The board further concluded that claimant had not established good cause for the reporting delay because she had failed to provide medical evidence supporting her contention that she was overwhelmed and heavily medicated as a result of her severe injuries and that that had caused her to forget the intended home visit.

[683]*683Claimant first argues on judicial review that, within the required 90 days, employer had legally sufficient knowledge of the injury and the possibility of its work relatedness to satisfy the standard set forth in ORS 656.265(4)(a). Although the knowledge of a supervisor will be imputed to the employer, Safeway Stores, Inc. v. Angus,

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Related

Kuralt v. SAIF Corp. (In re Kuralt)
415 P.3d 1077 (Court of Appeals of Oregon, 2018)

Cite This Page — Counsel Stack

Bluebook (online)
388 P.3d 728, 281 Or. App. 679, 2016 Ore. App. LEXIS 1318, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lopez-v-saif-corp-orctapp-2016.