SAIF Corp. v. Fitzsimmons

978 P.2d 404, 159 Or. App. 464, 1999 Ore. App. LEXIS 497
CourtCourt of Appeals of Oregon
DecidedApril 7, 1999
Docket96-08824; CA A101755
StatusPublished
Cited by4 cases

This text of 978 P.2d 404 (SAIF Corp. v. Fitzsimmons) 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
SAIF Corp. v. Fitzsimmons, 978 P.2d 404, 159 Or. App. 464, 1999 Ore. App. LEXIS 497 (Or. Ct. App. 1999).

Opinion

*466 EDMONDS, P. J.

Insurer and employer seek review of a Workers’ Compensation Board order in which the Board increased claimant’s rate of temporary disability compensation. We review for errors of law, ORS 656.298(7), and affirm.

Claimant injured his elbow and filed a workers’ compensation claim with his employer. After an initial denial, insurer accepted the claim and paid claimant temporary disability compensation based on a 52-week average wage of $247.67. Thereafter, insurer issued a notice of closure, and claimant requested reconsideration on several issues but did not specifically raise the issue of the rate of compensation. After the request for reconsideration, insurer sent an explanation of its calculations to claimant. The Department of Consumer and Business Services (Department) affirmed the insurer’s notice of closure in all respects.

Claimant requested a hearing and raised the issue of the compensation rate for the first time. The administrative law judge (ALJ) concluded that claimant’s failure to raise the issue of the compensation rate on reconsideration precluded him from raising it at the hearing under ORS 656.283(7). On review, the Board disagreed and then concluded that insurer had improperly calculated the rate of temporary disability under the version of OAR 436-60-025(5)(a) in effect at the time of claimant’s injury.

Insurer first assigns error to the Board’s conclusion that claimant was not precluded from raising the rate issue at hearing. Insurer argues that the payment of compensation at a particular rate was sufficient to put claimant on notice and that, because the issue was not raised on reconsideration, claimant is precluded under ORS 656.283(7) from raising the issue at hearing. 1 Claimant asserts that the reconsideration process is not a bar to issues that are not manifest in the notice of closure and that the notice did not specify the compensation rate.

*467 ORS 656.283(7) provides, in relevant part:

“Evidence on an issue regarding a notice of closure or determination order 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.”

Claimant argues that the facts in this case are not distinguishable from those in Venetucci v. Metro, 155 Or App 559, 964 P2d 1090 (1998). In that case, the claimant requested a hearing after receiving a letter from the insurer notifying her that compensation had been overpaid. Even though the issue of overpayment was not raised on reconsideration, we held that it could be litigated at hearing because the objection was not to an issue raised at closure. Instead, the objection was to an issue raised in the letter, and the rate of compensation had not been manifest in the notice of closure. Venetucci, 155 Or App at 564. Therefore, the claimant in Venetucci was not precluded by ORS 656.283(7) from objecting at hearing to the rate of compensation.

Here, neither the rate nor the method of calculation was specified in the notice of closure. The notice informed claimant of the number of days of total disability and the total amount of temporary disability paid before closure. Although insurer argues that the facts in this case can be distinguished from the facts in Venetucci, we are not persuaded that those distinctions make any difference. As in Venetucci, the notice of closure did not make the rate of compensation manifest. Accordingly, the Board did not err when it held that claimant was not precluded by ORS 656.283(7) from raising the issue of the rate of compensation at hearing.

The next issue is whether the Board’s interpretation of OAR 436-60-025(5)(a) (WCD Order 94-055), as applied to the facts in this case, is correct. That rule provides, in part:

“(5) The rate of compensation for workers regularly employed, but paid on other than a daily or weekly basis, or employed with unscheduled, irregular or no earnings shall be computed on the wages determined by this rule. * * *
“(a) For workers employed on call, paid hourly, paid by piece work or with varying hours, shifts or wages, insurers *468 shall use the worker’s average weekly earnings with the employer at injury for the 52 weeks prior to the date of injury. For workers employed less than 52 weeks or where extended gaps exist and where there has been no change in the amount or method of the wage earning agreement, insurers shall use the actual weeks of employment with the employer at injury up to the previous 52 weeks. Where there has been a change in the amount or method of the wage earning agreement during the previous 52-week period, insurers shall use only the actual weeks of employment under the wage earning agreement at time of injury. For workers employed less than four weeks, insurers shall use the intent of the most recent wage earning agreement as confirmed by the employer and the worker.” (Emphasis added.)

The facts are not in dispute. Claimant’s injury occurred on September 2, 1995. He worked during all of the 52 weeks before his injury with the exception of 15 weeks between December 6,1994, to April 1,1995, due to a “regular, seasonal layoff.” Claimant’s wages totaled $12,879 for the 52-week period before his injury. Insurer determined his compensation rate by dividing the total by 52 and arriving at an average weekly wage of $247.67. The Board concluded that under the rule, the 15-week layoff constituted an “extended gap” and that the 15 weeks had to be excluded from the calculation. As a result, the Board divided the total wages by 37 weeks to arrive at an average weekly wage of $348.08.

Whether insurer or the Board’s calculation is correct turns on the meaning of “extended gap” and the purpose of the rule. Insurer views the rule as providing for an average wage loss. The Board interprets the rule to approximate the worker’s wage at the time of injury. In interpreting an administrative rule, our task is to determine the meaning of the words used, giving effect to the intent of the enacting body. Abu-Adas v. Employment Dept., 325 Or 480, 485, 940 P2d 1219 (1997). We begin with the text and context of the rule.

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Related

Garcia v. SAIF Corp.
95 P.3d 1166 (Court of Appeals of Oregon, 2004)
State v. Smedley
2003 UT App 79 (Court of Appeals of Utah, 2003)
SAIF Corp. v. Frias
8 P.3d 1005 (Court of Appeals of Oregon, 2000)
State v. Gamblin
2000 UT 44 (Utah Supreme Court, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
978 P.2d 404, 159 Or. App. 464, 1999 Ore. App. LEXIS 497, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saif-corp-v-fitzsimmons-orctapp-1999.