Weyerhaeuser Co. v. Ellison

145 P.3d 309, 208 Or. App. 612, 2006 Ore. App. LEXIS 1584
CourtCourt of Appeals of Oregon
DecidedOctober 11, 2006
Docket02-01950; A128919
StatusPublished

This text of 145 P.3d 309 (Weyerhaeuser Co. v. Ellison) 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
Weyerhaeuser Co. v. Ellison, 145 P.3d 309, 208 Or. App. 612, 2006 Ore. App. LEXIS 1584 (Or. Ct. App. 2006).

Opinion

RICHARDSON, S. J.

Employer seeks review of an order of the Workers’ Compensation Board on remand, challenging the board’s determination that the correct rate for the calculation of claimant’s scheduled permanent disability is $511.29 per degree. We review the board’s legal conclusions for errors of law, ORS 183.482(8)(a), and its findings for substantial evidence, ORS 183.482(8)(c), and affirm.

The issue in dispute is the “date of injury” for purposes of determining claimant’s benefits. The facts are stated in our previous opinion, Ellison v. Weyerhaeuser Company, 193 Or App 635, 637, 91 P3d 815 (2004):

“After working 37 years for employer, claimant retired on January 19, 1989. Twelve years later, on January 18, 2001, he sought treatment for binaural hearing loss. He filed a claim, which employer initially denied. Ultimately, however, employer rescinded the denial and, pursuant to a stipulation, agreed to process the hearing loss claim. Among other things, the stipulation resolved ‘all issues raised or raisable by any party.’
“Employer later issued a notice of closure awarding claimant scheduled permanent disability, listing the date of injury as January 19, 1989. On that date, the applicable rate for claimant’s disability would have been $347.51 per degree.
“Claimant requested reconsideration, contesting the date of injury. The order on reconsideration concluded that the disability award was payable at the rate in effect for injuries on January 19, 1989. Claimant sought a hearing, arguing that the date of injury was January 18, 2001, the first date of treatment. On that date, the applicable rate for claimant’s disability would have been $511.29 per degree. Employer responded that the relevant date is the date of last exposure and that, in any event, because the issue was raised or raisable at the time of the stipulation, claimant now is precluded from raising it.”

In its first order, the board determined that the date of injury was the last date of claimant’s employment with employer, which is the date of claimant’s last exposure to noise. The board did not address in its first order whether claimant was [615]*615precluded by the parties’ stipulation from arguing that any other date applied. 193 Or App at 637.

In Reynoldson v. Multnomah County, 189 Or App 327, 332, 75 P3d 477, rev den, 336 Or 192 (2003), we held that, under ORS 656.202(2), the date of injury for an occupational disease is “the date of disability from the disease or the date of the first medical treatment of it.” In our first opinion in this case, we remanded to the board for it to determine in the first instance whether claimant was precluded by the terms of the stipulation from asserting that the date of injury was other than January 19,1989, the date used by employer to calculate benefits. 193 Or App at 638.

On remand, the board examined the parties’ stipulation, which provided, in part:

“Claimant filed a claim for binaural hearing loss. On April 3, 2001, [the employer] denied claimant’s claim. Claimant timely requested a hearing.
“Based on subsequently developed evidence, [the employer] hereby agrees to rescind its denial, accept the claim and pay claimant’s attorney an assessed fee.
“It is hereby stipulated and agreed that this matter be settled, subject to the approval of the Workers’ Compensation Board, on the following terms: [the employer] hereby rescinds its denial of this claim and the claim hereby is remanded to [the employer] for acceptance and all benefits provided by law; [the employer] shall pay to claimant’s attorney a reasonable assessed attorney fee of $1250 for his efforts in obtaining acceptance of claimant’s claim.
“It is further stipulated and agreed that this settlement resolves all issues raised or raisable by any party on the date of its approval.”

The board rejected employer’s contention that claimant was precluded by the stipulation from disputing the date of injury stated in the notice of closure that employer submitted.

It also rejected employer’s argument that a determination that the date of injury is later than the date of last exposure results in an unconstitutional impairment of the [616]*616contractual obligations between the state and the employer respecting workers’ compensation.

On judicial review, employer asserts that the date of injury was a question that was “raised or raisable” at the time of the settlement and that claimant is precluded from disputing that issue in the hearing. It argues that, although the precise date of injury was not a subject of dispute, claimant was aware that the date of injury had been designated in some documents and he was aware of its significance. He clearly could have contested that date had he wished to during settlement negotiations. Having failed to do so, employer asserts, he is precluded by the stipulation from doing so now.

The parties do not contend that the stipulation is ambiguous, and we conclude that it is not. Accordingly, its construction is a matter of law for the court. Good Samaritan Hospital v. Stoddard, 126 Or App 69, 72, 867 P2d 543, rev den, 319 Or 572 (1994).

Employer’s argument depends on the provision of the stipulation that it “resolves all issues raised or raisable by any party on the date of its approval.” In its suggested resolution, employer imports aspects of the law about issue and claim preclusion. Although that analysis has some benefit, the essential issue is what did the parties agree in their resolution of the compensation claim; in other words, what “raised or raisable” means in the context of the parties’ agreements. The issue of “date of injury” or calculation of benefits was not raised. Was it nevertheless an issue within the category of “raisable” issues that the parties agreed was settled?

The agreement centered around employer’s denial of the hearing loss claim. As the stipulation recites, employer agreed to rescind its denial, and the claim was remanded to employer for “acceptance and benefits provided by law.” We construe this agreement to be that, once the denial was rescinded, employer then took on the task of processing the claim, including a closing statement that included calculation of “benefits provided by law.” Claimant would have had no reason or incentive to raise the issue of the appropriate date of injury for purposes of claim processing; the claim [617]*617processing had just begun. Claimant was entitled to challenge the processing of the claim if it failed to result in “benefits provided by law.” We accordingly conclude that the board correctly held that the date of injury is not an issue that was resolved by the stipulation; thus claimant’s challenge to the date of injury stated in the notice of closure was not precluded by the stipulation.

Employer also raises on appeal its constitutional challenge to calculation of the date of injury under the statutory analysis set out in Reynoldson.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Hughes v. State of Oregon
838 P.2d 1018 (Oregon Supreme Court, 1992)
DOES 1, 2, 3, 4, 5, 6, AND 7 v. State
993 P.2d 822 (Court of Appeals of Oregon, 1999)
Eckles v. State of Oregon
760 P.2d 846 (Oregon Supreme Court, 1988)
Reynoldson v. Multnomah County
75 P.3d 477 (Court of Appeals of Oregon, 2003)
Good Samaritan Hospital v. Stoddard
867 P.2d 543 (Court of Appeals of Oregon, 1994)
Ellison v. Weyerhaeuser Co.
91 P.3d 815 (Court of Appeals of Oregon, 2004)

Cite This Page — Counsel Stack

Bluebook (online)
145 P.3d 309, 208 Or. App. 612, 2006 Ore. App. LEXIS 1584, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weyerhaeuser-co-v-ellison-orctapp-2006.