McCrea v. Arriola Bros.

PER CURIAM

Claimant seeks reversal of an order of the Workers’ Compensation Board (Board) that upheld the denial of the claim by employer based on ORS 656.262(10), as amended by Oregon Laws 1995, chapter 332, section 28.¹ In reaching its decision, the Board relied on its holding in Craig L. Hiatt, 47 Van Natta 2287 (1995), in which it incorrectly interpreted ORS 656.262(10). Hiatt v. Halton Company, 143 Or App 579, 922 P2d 1279 (1996); see Deluxe Cabinet Works v. Messmer, 140 Or App 548, 915 P2d 1053, rev den 324 Or 305 (1996). Similarly, the Board incorrectly interpreted ORS 656.262(10) in this case.²

Reversed and remanded for reconsideration.

1 Employer argues that claimant did not preserve this argument below and, thus, that we should not address it. However, the Board sua sponte applied ORS 656.262(10) to the facts of this case.

2 We do not decide whether claim preclusion applies in this case.