Pietrzykowski v. Albertsons, Inc.

157 P.3d 1268, 212 Or. App. 421, 2007 Ore. App. LEXIS 617
CourtCourt of Appeals of Oregon
DecidedMay 2, 2007
Docket0204383; A130932
StatusPublished
Cited by1 cases

This text of 157 P.3d 1268 (Pietrzykowski v. Albertsons, Inc.) 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
Pietrzykowski v. Albertsons, Inc., 157 P.3d 1268, 212 Or. App. 421, 2007 Ore. App. LEXIS 617 (Or. Ct. App. 2007).

Opinion

ARMSTRONG, J.

This workers’ compensation claim is before us for the second time. In its first order, the Workers’ Compensation Board overturned an award on reconsideration of 28.53 percent disability for claimant’s hearing loss and reinstated employer’s notice of closure and award of 6.88 percent. In Pietrzykowski v. Albertsons, Inc., 199 Or App 387, 111 P3d 802 (2005) (Pietrzykowski I), we reversed and remanded the board’s order for a more complete explanation of its decision. On remand, the board adhered to its former order, as amplified. Claimant seeks judicial review, contending once again that the board erred, and we affirm.

Claimant has an accepted claim for work-related hearing loss. In February, 2001, Dr. Lindgren examined claimant and determined that his hearing loss entitled him to scheduled permanent partial disability benefits of 6.88 percent and also verified that the audiogram had been conducted more than 24 hours after noise exposure. In June 2001, Dr. Lipman examined claimant at employer’s request. His audiogram showed a higher level of hearing loss and resulted in respectively higher disability benefits (28.53 percent) than earlier reported by Lindgren. His test report, however, did not state whether claimant had been exposed to noise within the 14 hours preceding the audiogram, as required by OAR 436-035-0250(3)(b) (“Test results will be accepted only if they come from a test conducted at least 14 consecutive hours after the worker has been removed from significant exposure to noise.”). Lindgren subsequently concurred in Lipman’s report. Employer closed the claim and based its award on the level of hearing loss stated in Lindgren’s report.

On claimant’s request for reconsideration of the closure notice, the Appellate Review Unit of the Workers’ Compensation Division of the Department of Consumer and Business Services (ARU) had before it both audiograms and increased claimant’s award to 28.53 percent based on Lipman’s more recent audiogram. Employer requested a hearing, and, at the hearing, challenged for the first time the use of Lipman’s report for the rating of claimant’s impairment. Employer argued that the report failed to state [424]*424whether claimant had been exposed to noise during the 14 hours preceding the audiogram and that, for that reason, it was unreliable. The administrative law judge (ALJ) concluded that there was no legal impediment to employer’s challenge to Lipman’s audiogram and found that Lipman’s results were less reliable than Lindgren’s. The ALJ reduced claimant’s award to 6.88 percent. Claimant appealed to the board.

ORS 656.283(7) sets forth the rules of evidence applicable to hearings and provides, in part:

“Evidence on an issue regarding a notice of closure that was not submitted at the reconsideration required by ORS 656.268 is not admissible at hearing, and issues that were not raised by a party to the reconsideration may not be raised at hearing unless the issue arises out of the reconsideration order itself. However, nothing in this section shall be construed to prevent or limit the right of a worker, insurer or self-insured employer to present the reconsideration record at hearing to establish by a preponderance of that evidence that the standards adopted pursuant to ORS 656.726 for evaluation of the worker’s permanent disability were incorrectly applied in the reconsideration order pursuant to ORS 656.268.”

Similarly, ORS 656.268(8) provides:

“No hearing shall be held on any issue that was not raised and preserved before the director at reconsideration. However, issues arising out of the reconsideration order may be addressed and resolved at hearing.”

Before the board, claimant objected to the ALJ’s consideration of employer’s challenge to the reliability of Lipman’s report, contending that the issue of the reliability of Lipman’s report had not been raised by employer at the reconsideration proceeding and therefore employer had not exhausted its administrative remedies and could not raise the issue at the hearing. The board rejected claimant’s exhaustion contention. Relying on our opinion in Marvin Wood Products v. Callow, 171 Or App 175, 183, 14 P3d 686 (2000) (issues may be expanded at hearing only to consider those “arising out of the reconsideration order itself’), and ORS 656.283(7), the [425]*425board explained that employer need not have raised on reconsideration the issue of the reliability of Lipman’s report in order to raise the reliability of the report before the ALJ because that issue arose out of the reconsideration order itself:

“[I]t was not until the Order on Reconsideration issued that the employer first became aware of how the Appellate Review Unit would utilize Dr. Lipman’s report. In other words, there was no reason for the employer to object to the use of that report to rate claimant’s permanent impairment until the Order on Reconsideration issued. Therefore, the employer appropriately raised the issue of the inadequacy of Dr. Lipman’s findings, which ‘arose out of the reconsideration order itself,’ by requesting a hearing.”

The board upheld the ALJ’s order. On review of the board’s first order, we held in Pietrzykowski I that there was substantial evidence to support the board’s finding that Lipman’s report was less reliable than Lindgren’s report. 199 Or App at 393. However, we held that the board’s order had failed to make clear its reasoning in support of its conclusion that employer’s objections to the reliability of Lipman’s report did not need to be raised on reconsideration. We accordingly held that we could not conduct a meaningful review of the board’s order and remanded the case to the board for reconsideration. 199 Or App at 394. In light of our remand, we did not address claimant’s additional contention that, if employer’s challenge to Lipman’s report could be considered at the hearing, then he must be permitted to testify that, in fact, he was not exposed to noise less than 14 hours before the hearing test. 199 Or App at 396.

In its order on remand, the board provided a lengthy explanation for its decision to consider evidence of the reliability of the Lipman audiogram. In explaining the first rationale for its decision, the board analogized this case to Crowder v. Alumaflex, 163 Or App 143, 986 P2d 1269 (1999), in which we held that the claimant was not precluded from seeking at hearing a higher, newly enacted, rate of disability even though he had not requested a change in the rate at the time of reconsideration. We reasoned in a footnote that the purpose of the reconsideration process is to streamline the [426]*426correction of errors and that, because, at the time of reconsideration, the law had not yet been amended to increase the disability rate, there was no error at the time of reconsideration to be corrected. 163 Or App at 149 n 3.

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Cite This Page — Counsel Stack

Bluebook (online)
157 P.3d 1268, 212 Or. App. 421, 2007 Ore. App. LEXIS 617, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pietrzykowski-v-albertsons-inc-orctapp-2007.