Weyerhaeuser Co. v. Rich

144 P.3d 978, 208 Or. App. 302, 2006 Ore. App. LEXIS 1461
CourtCourt of Appeals of Oregon
DecidedSeptember 27, 2006
Docket04-06032; A128920
StatusPublished
Cited by4 cases

This text of 144 P.3d 978 (Weyerhaeuser Co. v. Rich) 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. Rich, 144 P.3d 978, 208 Or. App. 302, 2006 Ore. App. LEXIS 1461 (Or. Ct. App. 2006).

Opinion

RICHARDSON, S. J.

Employer seeks review of a Workers’ Compensation Board (board) order dismissing its request for a hearing on a dispute concerning claimant’s request for replacement of his hearing aid. The board dismissed the dispute for lack of “jurisdiction”1 and transferred the matter to the Workers’ Compensation Division (division) for resolution. On review, employer assigns error to the board’s conclusion that the matter does not involve a dispute over the compensability of medical services within the authority of the board. We review for errors of law, ORS 183.482(8)(a), and affirm.

The basic facts are not in dispute. Claimant filed a claim for hearing loss with employer.2 That claim was accepted. After claimant retired, employer continued to provide him with hearing aids. On this occasion, claimant removed his left hearing aid in order to answer a call on his cell phone and placed it in his lap. He temporarily forgot about it and when he stood up it fell to the ground. Claimant subsequently searched the location and discovered that the hearing aid had been crushed by a passing vehicle.

Claimant asked employer to pay for a replacement hearing aid, but employer denied the claim.3 Claimant appealed the decision to the division and it directed employer to pay for the replacement. Employer sought reconsideration, arguing that “jurisdiction” over the dispute rested with the board and not the division. The division stayed its prior order and transferred the matter to the board for consideration of employer’s contention.

An administrative law judge (ALJ) then determined that authority over the dispute rested with the division [305]*305rather than with the board and ordered the matter transferred back to the division. Employer requested that the board review the ALJ’s order, arguing, inter alia, that the board has authority because the dispute involves a question of “causation” under ORS 656.704(3)(b)(C). The board reviewed the ALJ’s decision and affirmed, holding that the dispute concerned whether replacement of claimant’s hearing aid was “excessive,” an issue within the purview of the division under ORS 656.704(3)(b)(B).

On review, employer renews its argument that the dispute involves causation. In particular, employer frames the issue as “whether claimant’s compensable hearing loss caused the need for replacement of his left hearing aid or whether an independent and intervening cause led to the need for a replacement hearing aid.” (Emphasis added.) In response, claimant asserts that employer is “only trying to make the point that when an injured worker accidently destroys a prosthetic device, then providing a new device is simply excessive,” a dispute that falls within the authority of the division. He argues, as well, that case law establishes that palliative care and replacement of prosthetic devices are not “matters concerning a claim;” thus they are not matters within the board’s authority.

Oregon’s workers’ compensation system is administered by the Workers’ Compensation Division, an agency within the Department of Consumer and Business Services. ORS 656.704 allocates authority between the division and the board to adjudicate disputes brought by parties who are dissatisfied with an action or order of the division. While the board has authority to review “matters concerning a claim,” ORS 656.704(l)(a), the division has authority over other matters, ORS 656.704(2)(a) 4 “[Mjatters concerning a claim * * * are those matters in which a worker’s right to receive compensation, or the amount thereof, are directly in issue.” ORS 656.704(3)(a).

[306]*306ORS 656.704(3)(b) provides that

“[t]he respective authority of the board and the director to resolve medical service disputes shall be determined according to the following principles:
“(A) Any dispute that requires a determination of the compensability of the medical condition for which medical services are proposed is a matter concerning a claim.
“(B) Any dispute that requires a determination of whether medical services are excessive, inappropriate, ineffectual or in violation of the rules regarding the performance of medical services, or a determination of whether medical services for an accepted condition qualify as compensable medical services among those listed in ORS 656.245(l)(c), is not a matter concerning a claim.
“(C) Any dispute that requires a determination of whether a sufficient causal relationship exists between medical services and an accepted claim to establish compensability is a matter concerning a claim.”

As noted, the board held that the present dispute over whether employer is required to pay for claimant’s replacement hearing aid should be heard by the division because the dispute, “actually concerns whether replacement of a hearing aid damaged by accident is ‘excessive.’ ” The board’s decision, then, deemed the present issue to be governed by ORS 656.704(3)(b)(B). Employer here reprises the argument it advanced to the board, namely, that the dispute is the board’s to resolve because it concerns a dispute over causation that is governed by ORS 656.704(3)(b)(C). For the following reasons, we agree with the board and claimant.

When read together, ORS 656.704(3)(b)(A) and (C) reserve to the board authority essentially over disputes concerning the compensability of medical conditions for which medical services are proposed and disputes concerning whether those medical services are sufficiently, causally related to the accepted claim. Here, employer does not contend that claimant’s medical condition — his hearing loss — is no longer compensable or that it has improved to the point that he no longer needs a hearing aid. Rather, the contention is that the need for the replacement hearing aid arises as a [307]*307result of claimant’s carelessness, which employer characterizes as an intervening cause. However, as the board correctly noted, the workers’ compensation system is not based on fault, and, other than the exceptions listed in ORS 656.005

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Cite This Page — Counsel Stack

Bluebook (online)
144 P.3d 978, 208 Or. App. 302, 2006 Ore. App. LEXIS 1461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/weyerhaeuser-co-v-rich-orctapp-2006.