Sheridan v. Johnson Creek Market

873 P.2d 328, 127 Or. App. 259, 1994 Ore. App. LEXIS 589
CourtCourt of Appeals of Oregon
DecidedApril 20, 1994
DocketWCB 91-09220; CA A79201
StatusPublished
Cited by2 cases

This text of 873 P.2d 328 (Sheridan v. Johnson Creek Market) 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
Sheridan v. Johnson Creek Market, 873 P.2d 328, 127 Or. App. 259, 1994 Ore. App. LEXIS 589 (Or. Ct. App. 1994).

Opinion

WARREN, P. J.

Claimant seeks review of an order of the Workers’ Compensation Board. We reverse.

Claimant filed a claim for a chipped bone in her elbow, which employer accepted. She received surgery to remove a loose particle in the elbow, but she continued to experience symptoms. On December 14, 1990, employer issued a notice of closure, finding her medically stationary on November 26, 1990, and awarding her temporary disability but no permanent disability. On June 7,. 1991, claimant requested reconsideration of the notice of closure, claiming that employer had prematurely closed the claim, or in the alternative, that she was entitled to an award of permanent disability.

On July 2,1991, employer issued a denial of compensability of and responsibility for the elbow condition after November 26, 1990, based on its conclusion that the industrial injury was not the major cause of any orthopedic or neurological condition after that date.

On July 9, 1991, the Appellate Review Unit (ARU) issued its order on reconsideration of the notice of closure. It rescinded the notice of closure, because it determined that the closure was premature. It also ordered employer to pay claimant’s attorney an amount equal to ten percent of any additional compensation awarded, up to a maximum of $420. On July 11, 1991, claimant filed a request for hearing. On July 30, 1991, the ARU issued an order withdrawing the July 9 reconsideration order. It held that it had not had jurisdiction on July 9 to reconsider the December 14, 1990, notice of closure, because the claim was in denied status as a result of the July 2 denial. Claimant then sent a letter to the referee, adding an appeal from the July 30 withdrawal order as an additional issue at hearing.

The referee affirmed both the July 30 withdrawal order and employer’s July 2 denial. The Board adopted the referee’s findings. It concluded that the purported withdrawal of the July 9 order on reconsideration was incorrect, but found that that withdrawal was in fact an amendment of the July 9 order on reconsideration, which effectively affirmed the notice of closure. It then found, however, that [262]*262the July 9 order on reconsideration was invalid, because claimant challenged the impairment findings, and the director did not appoint a medical arbiter as required by ORS 656.268(7) and Olga I. Soto, 44 Van Natta 697 (1992).1 It also adopted without discussion the referee’s conclusions affirming the July 2 denial.

Claimant seeks review, raising three assignments of error. She first challenges the Board’s findings that the July 9 order on reconsideration was invalid. Second, she asserts that the Board erred by not ruling that the July 9 order improperly limited claimant’s attorney fees. Because our resolution of both of those assignments depends on whether the ARU had the authority to issue the July 30 withdrawal order, we address that issue first.

Claimant argues that the ARU did not have jurisdiction on July 30 to withdraw its July 9 order for two reasons. First, she asserts that her July 11 request for hearing challenged the July 9 order, and therefore jurisdiction over the July 9 order vested in the Hearings Division, depriving the ARU of jurisdiction to withdraw that order. In the alterative, she argues that, “absent the request for hearing, the insurer’s Notice of Closure dated December 14, 1990 would have become final by operation of law,” because the time for requesting a hearing on the reconsideration order had passed before the July 30 order was issued. See ORS 656.268(6)(b). Employer responds that claimant did not appeal the July 9 order on reconsideration, and therefore the ARU had continuing jurisdiction to withdraw it. Employer also argues that the 180 days for appeal had not run, because the time during which the notice of closure is on reconsideration is not included in the 180-day calculation, and the reconsideration was ongoing until the withdrawal order was issued on July 30.

Claimant’s first argument fails, because she did not request a hearing regarding the July 9 order. The July 11 request for hearing included the dates of the July 2 denial and the July 9 reconsideration order. It listed the reasons for the [263]*263appeal as: “DENIAL DATE 7/2/91,” “COMPENSABILITY,” and “PENALTIES AND ATTORNEY FEES.” The Board found that, “[o]n July 11,1991, claimant filed a Request for Hearing raising, as issues, the July 2, 1991 denial, compensability, and penalties and attorney fees. * * * Insurer did not file a request for hearing to challenge that July 9,1990 [sic] Order on Reconsideration.” Neither the request for hearing nor the findings clearly state whether the request for hearing raised any issues relating to the July 9 order on reconsideration. The only challenge claimant made to that order relates to the limitation on the amount of fees to be paid to her attorney. Both the request for hearing and the Board’s findings mention attorney fees, but it is not clear whether those references relate to penalties and attorney fees for the July 2 denial, or to the limitation on attorney fees in the July 9 order on reconsideration, or both. However, a portion of the referee’s order that was adopted by the Board makes it clear that the Board found that the July 11 appeal related only to the July 2 denial, and not to the July 9 order on reconsideration. The referee said, in his discussion regarding whether the order on reconsideration should be affirmed:

“Claimant argues the ARU was without authority to issue its July 30, 1990 [sic] order withdrawing its July 9, 1991 Order on Reconsideration. * * *
a* * * * *
“At the time of the ARU’s July 30,1991 order withdrawing the July 9,1991 Order on Reconsideration, neither party had filed a request for hearing raising, as an issue, the July 9, 1991 Order on Reconsideration.” (Emphasis supplied.)

The Board adopted that portion of the referee’s order. Claimant does not challenge the finding that she did not appeal the July 9 order on reconsideration. Accordingly, we conclude that there was no appeal from the July 9 order and jurisdiction over that order never vested in the Hearings Division.

That does not mean, as employer argues, that the ARU had continuing authority on July 30 to withdraw its July 9 order. As we said in SAIF v. Fisher, 100 Or App 288, 291, 785 P2d 1082 (1990):

“In the absence of a statutory provision limiting its authority to do so, an agency has plenary authority to decide matters committed to it by the legislature. That authority [264]*264includes the authority to withdraw an order and to reconsider the decision embodied in the order.”

One limitation on that authority is that it exists only until an order becomes final. 100 Or App at 291; see Lyday v. Liberty Northwest Ins. Corp., 115 Or App 668, 839 P2d 756 (1992). In SAIF v. Fisher, supra, we held that ORS 656.295(8), which provides that an order of the Board is final unless a party seeks review within 30 days, provides a limitation on the Board’s authority to withdraw or amend its orders.

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Related

Kiltow v. SAIF Corp.
351 P.3d 786 (Court of Appeals of Oregon, 2015)
Sheridan v. Johnson Creek Market
941 P.2d 1063 (Court of Appeals of Oregon, 1997)

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Bluebook (online)
873 P.2d 328, 127 Or. App. 259, 1994 Ore. App. LEXIS 589, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sheridan-v-johnson-creek-market-orctapp-1994.