Talley v. BCI Coca Cola Bottling

55 P.3d 558, 184 Or. App. 129, 2002 Ore. App. LEXIS 1568
CourtCourt of Appeals of Oregon
DecidedOctober 9, 2002
Docket96-09870; A113826
StatusPublished
Cited by2 cases

This text of 55 P.3d 558 (Talley v. BCI Coca Cola Bottling) 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
Talley v. BCI Coca Cola Bottling, 55 P.3d 558, 184 Or. App. 129, 2002 Ore. App. LEXIS 1568 (Or. Ct. App. 2002).

Opinion

BREWER, J.

Claimant seeks review of an order of the Workers’ Compensation Board (board) dismissing for lack of jurisdiction his request for hearing concerning employer’s notice of closure, which employer issued after claimant’s certified vocational counselor terminated claimant’s authorized training program (ATP) for lack of cooperation. Because we conclude that the board’s Hearings Division had jurisdiction to consider claimant’s request for hearing as a “matter concerning a claim,” ORS 656.283(1),1 we reverse and remand.

Claimant injured his back in 1977 while working for employer’s predecessor. He filed a workers’ compensation claim for the injury, and the claim ultimately was closed. In 1982, claimant filed a claim for aggravation, and employer accepted the claim. After employer again closed the claim, claimant requested a hearing, seeking vocational assistance and contending that the claim had been closed prematurely. An administrative law judge (AU) determined that the claim should be reopened, but also concluded that claimant was not then eligible for vocational assistance because there was a chance that his condition would improve and he was not then living in Oregon.

Claimant became medically stationary on May 7, 1987, and the aggravation claim was closed in July 1987. Ultimately, claimant received an award of 60 percent unscheduled permanent partial disability. The parties agree that claimant’s aggravation rights on his original claim expired in October 1983. After that date, the claim was in “board own motion” status.

In 1991, claimant moved back to Oregon. In August 1991, employer determined that claimant was eligible for vocational assistance and reopened the claim for the purpose [132]*132of providing vocational assistance. Employer began paying claimant benefits for temporary total disability, and claimant began an ATP to enable him to complete a bachelor’s degree and gain some work experience. The parties agree that employer did not seek to have the claim reopened under the board’s own motion jurisdiction and that it would not have been subject to reopening under the board’s own motion jurisdiction. The parties also agree that the vocational assistance was provided pursuant to the procedures set forth in ORS 656.340.

The vocational counselor terminated claimant’s ATP in February 1993 due to claimant’s alleged lack of cooperation. Claimant challenged the termination without success. On March 19, 1993, the director of the former Department of Insurance and Finance (DIF) issued an order determining that claimant was no longer eligible for vocational assistance. Meanwhile, on March 17, 1993, employer had issued a conventional notice of closure, awarding claimant time loss benefits for the period during which he participated in the ATP but no additional permanent partial disability. The notice of closure instructed claimant that, if he was dissatisfied, he could request reconsideration with the appellate unit of DIF.

Claimant requested a hearing, challenging both the director’s order ending his eligibility for vocational assistance and the notice of closure. In July 1994, the AU abated the director’s order, reinstated claimant’s eligibility for vocational assistance, and held that the determination of the extent of claimant’s disability should await the completion of the vocational program. However, the AU made no disposition with regard to the notice of closure. Claimant requested reconsideration of the AU’s order, seeking to have the notice of closure set aside as premature. The AU abated his first order, but before he could issue an order on reconsideration the legislature amended ORS 656.283(3)(c) to provide that the director has exclusive jurisdiction over review of the director’s orders regarding vocational assistance. Or Laws 1995, ch 332, § 34. In November 1996, the AU issued an order dismissing for lack of jurisdiction claimant’s request for hearing from the director’s order terminating his eligibility for vocational assistance and also set aside the previous abatement of the director’s order. The board affirmed the [133]*133ALJ, concluding that the 1995 legislative changes applied retroactively to pending cases and that the board’s Hearings Division no longer had jurisdiction to consider challenges to the director’s vocational assistance orders.

Claimant exhausted his administrative remedies before the director concerning his eligibility for vocational assistance. In March 1997, a hearing officer for the Workers’ Compensation Division upheld the director’s order terminating claimant’s eligibility for vocational assistance. That order became final.

However, claimant’s hearing request regarding the notice of closure remained pending before the Hearings Division. On July 10, 2000, the ALJ issued an order determining that, because claimant’s aggravation rights had expired, claimant’s claim was within the board’s own motion jurisdiction, ORS 656.278, under which there is no entitlement to vocational assistance. The ALJ reasoned, however, that, when an employer reopens such a claim under ORS 656.278(5), “it is appropriate” that own motion procedures govern the closure of the claim. Accordingly, the ALJ held that review of employer’s closure of the claim for vocational assistance would be under the board’s own motion jurisdiction and that the board’s Hearings Division did not have jurisdiction to consider claimant’s objections to the notice of closure.

The board affirmed the ALJ’s dismissal of the hearing request. One board member dissented, reasoning that, when a claim is reopened for vocational assistance, the claimant has an independent right to a redetermination of the extent of disability, even if the claim is in “own motion” status. The dissenting member further reasoned that, at the relevant time, ORS 656.268(8) provided that, after the termination of an ATP, the department is to reconsider the worker’s disability, and employer therefore did not have authority to issue a notice of closure. Accordingly, the dissent concluded, employer’s notice of closure was a nullity.

Lurking in this dispute is the underlying issue of claimant’s original eligibility for vocational assistance under ORS 656.340 in light of the fact that his aggravation rights had expired when employer reopened the claim. Citing [134]*134Harsh v. Harsco Corp., 123 Or App 383, 859 P2d 1178 (1993), rev den, 318 Or 661 (1994), employer asserts that the only benefits available to a claimant whose aggravation rights have expired are those listed in ORS 656.278, and they do not include vocational assistance. In employer’s view, therefore, claimant had no lawful entitlement to vocational assistance.

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Cite This Page — Counsel Stack

Bluebook (online)
55 P.3d 558, 184 Or. App. 129, 2002 Ore. App. LEXIS 1568, Counsel Stack Legal Research, https://law.counselstack.com/opinion/talley-v-bci-coca-cola-bottling-orctapp-2002.