Colclasure v. Washington County School District No. 48-J , 117 Or. App. 128 ( 1992 )

DEITS, J.

In the first of these consolidated petitions, claimant seeks review of the Workers’ Compensation Board’s reversal of a referee’s order reversing the decision of the Director of the Department of Insurance and Finance (Director) that claimant is not eligible for vocational assistance. In the second petition, claimant seeks reversal of the Board’s decision that he was not entitled to vocational assistance between the time that the referee found him eligible and the time that the Board reversed the referee. We affirm both orders.

The basis for the Director’s decision that claimant is not eligible for vocational assistance was that claimant had left his job for reasons unrelated to his compensable injury. The Director concluded, “There is no causal link between the injury and the need for vocational assistance.” See OAR 436-120-040(7); OAR 436-120-045(3). Claimant sought a hearing before the referee, who made findings, including that claimant did leave his job for reasons related to the injury and concluded that claimant is eligible for assistance. Employer sought Board review. The Board concluded, in effect, that the referee exceeded his review authority under the limited authority that ORS 656.283(2) provides for “modifying” a decision of the Director concerning eligibility for vocational assistance. The Board reasoned that the evidentiary record before the referee supplied a reasonable basis for the Director’s finding, whether or not it also supported the opposite finding of the referee, and that, therefore, the Director did not abuse his discretion and, under ORS 656.283(2), his decision could not be modified.

ORS 656.283(2) allows a modification of the Director’s decision only if it

‘ ‘ (a) Violates a statute or rule;

“(b) Exceeds the statutory authority of the agency;

“(c) Was made upon unlawful procedures; or

“(d) Was characterized by abuse of discretion or clearly unwarranted exercise of discretion.”

Claimant argues that the Board interpreted ORS 656.283(2) too narrowly and that, under a proper interpretation, the referee is the primary fact finder and may reverse an eligibility decision by the Director if the facts that the referee finds differ from the facts on which the Director relied, explicitly or implicitly.¹

In Lasley v. Ontario Rendering, 114 Or App 543, 547, 836 P2d 184 (1992), we construed the unusual review procedures of ORS 656.283(2):

“Under ORS 656.283(2), the hearing to which a claimant is entitled must be for the purpose of determining the historical facts relevant to the dispute. That responsibility is unaffected by the scope of review limitations in subsections (a) through (d). On the basis of that record, the referee may make findings of ultimate fact to determine whether the Director’s order is subject to modification for any of the specific reasons in ORS 656.283(2). On review, to determine whether the Director’s order is subject to modification, the Board reviews the record made by the referee but may make findings of ultimate fact different from those made by the referee. This court, however, reviews the Board’s decision only for errors of law and substantial evidence. ORS 656.298; ORS 183.482.”

In this case, it is necessary to decide the effect of findings made by the referee and the Board in performing their limited scope of review in this type of case. Although claimant recognizes that the language of ORS 656.283(2) defines the grounds for modification of a Director’s decision by the referee or Board, he argues that the Director’s decision can be reversed if the referee or Board find facts different from the ones found or relied on by the Director. We disagree. There are numerous statutes in Oregon giving reviewing courts and agencies the authority to reverse an erroneous finding or errors in the fact finding process. Had the legislature intended the Director’s decision to be subject to modification because of a fact finding error, it could have said so, as it has done in those other instances.

Claimant is not aided by his attempt to characterize the Director’s decision as an abuse of discretion. Although some decisions involving the determination or application of facts might constitute an abuse of discretion, the only error that is or can be asserted here is that, according to the referee, the Director was incorrect in his finding. It would be inconsistent with the purpose of the statutes relating to vocational rehabilitation — to encourage informal and expeditious resolution of vocational assistance disputes — to allow a decision by the Director to be reversed on a ground that the statute does not permit simply by relabeling it.²

The dissent would hold that the Board was incorrect in its starting premise that the referee is not the “primary fact finder” and that, therefore, we should remand to the Board for reconsideration under a correct understanding of the role that the statute assigns the referee. The dissent’s point is wholly unresponsive to the decisive issue — whether the Director’s decision can be'reversed by the referee solely because their views of the facts differ. If the Board’s understanding of the statute was wrong in the way that the dissent maintains, the most that the dissent demonstrates is that the Board’s holding was right for the wrong reasons. No purpose can be served by requiring the Board to reconsider the case under a different understanding of the statute when both understandings must lead to the same result. Labeling the referee as the “primary fact finder” does not alter the clear impact of the statutes that an error of fact cannot serve as a basis in itself for reversing the Director’s decision.

Claimant also argues that, under the Board’s interpretation of ORS 656.283(2) and presumably ours, he was denied a meaningful hearing and his due process rights were violated. He reasons that the Director conducts no hearing and that the referee’s hearing is essentially a meaningless exercise that can result in no relief, at least none based on any facts disclosed at the hearing. Claimant relies on Carr v. SAIF, 65 Or App 110, 670 P2d 1037 (1983), rev dismissed 297 Or 83 (1984), where we held that the claimant had a constitutionally protected property interest in temporary total disability benefits and that their payment could not be suspended without an appropriate hearing and related procedures. This case differs in that claimant never became eligible for vocational assistance. He had no property interest before an eligibility decision. The court said in Board of Regents v. Roth, 405 US 564, 577, 925 S Ct 2701, 33 L Ed 2d 548 (1972), as we quoted in Carr v. SAIF, supra, 65 Or App at 117:

“To have a property interest in a benefit, a person clearly must have more than an abstract need or desire for it. He must have more than a unilateral expectation of it. He must, instead, have a legitimate claim of entitlement to it.”

We do not find claimant’s constitutional argument persuasive.³

Our disposition of the arguments that we have addressed makes it unnecessary for us to reach the other contentions that claimant makes in connection with the first petition.

In his second petition, claimant argues that he was entitled to vocational services between the time of the referee’s and the Board’s decisions. He relies on the version of ORS 656.313(1) that was in effect at the relevant times and on former ORS 656.313(4), that was repealed by Or Laws 1990, ch 2, § 23. ORS 656.313(1) then required payment of “compensation” during the pendency of Board and court review initiated by an employer. Subsection (4) provided:

“Notwithstanding ORS 656.005, for the purpose of this section, ‘compensation’ means benefits payable pursuant to the provisions of ORS 656.204 to 656.208, 656.210 and 656.214 and does not include the payment of medical services.”

Vocational assistance is governed by ORS 656.340. Although, unlike medical service payments, it was not specifically excluded by former ORS 656.313(4), neither was it specifically included. Claimant relies on Georgia-Pacific v. Hughes, 305 Or 286, 751 P2d 775 (1988), where the court held that, although the claimant’s interim compensation was payable under ORS 656.262, which is not one of the statutes enumerated in former ORS 656.313(4), it was nevertheless “compensation” for the purposes of ORS 656.313 because the nature of interim compensation is the same as the types of compensation listed in ORS 656.313(4), namely death and permanent total disability, temporary total disability and permanent partial disability.

As the Board’s opinion explains, the payments that were included under former ORS 656.313(4) are those “that are paid directly to the claimant to replace or supplement wages or loss of earnings.” The purpose of ORS 656.313 was to prevent employers “from taking away sources of income” and thereby “wearing down” injured workers during the review process. The Board concluded that vocational assistance “is not a benefit which directly provides for maintenance of the injured worker,” and it is not a form of compensation for purposes of ORS 656.313.⁴ ORS 656.313(4) does not include vocational assistance in its definition of compensation, and we agree with the Board that it should not be read into the statute.

Affirmed on both petitions.

1 The Director is not required to conduct a hearing or to make findings. Here, however, he did make what amounted to findings.

2 We said in Lasley v. Ontario Rendering, supra, that, after conducting the hearing, “the referee may make findings of ultimate fact to determine whether the Director’s order is subject to modification for any of the specific reasons in OKS 656.283(2).” 114 Or App at 547. That language is not contrary to our conclusion here that a referee’s finding of fact that differs from the Director’s express or implied finding on the same question cannot serve as a basis for modification. That issue was not presented or decided in Lasley. The language in Lasley concerns a situation where a finding by the referee gives rise to a modification based on one of the four grounds specified in ORS 656.283(2). For example, if the referee had found that the Director decided a claim by flipping a coin or that he had refused to give the parties an equal opportunity to present their positions, modification of the decision on that basis would be permissible under one of the statutory grounds. Lasley did not add a fifth ground not found in the statute.

3 The basis for our rejection of the argument makes it unnecessary for us to decide whether its other premises are correct.

4 Vocational assistance may be a form of compensation under other provisions of the workers’ compensation law. See SAIF v. Severson, 105 Or App 67, 803 P2d 1203 (1990), modified 109 Or App 136, 817 P2d 1352 (1991).