DocketNumber: 04-06032; A128920
Citation Numbers: 208 Or. App. 302, 144 P.3d 978
Judges: Edmonds, Linder, Richardson
Filed Date: 9/27/2006
Status: Precedential
Modified Date: 7/24/2022
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”
The basic facts are not in dispute. Claimant filed a claim for hearing loss with employer.
Claimant asked employer to pay for a replacement hearing aid, but employer denied the claim.
An administrative law judge (ALJ) then determined that authority over the dispute rested with the division
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)
“[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
Employer disputes that conclusion by reference to the dictionary definition of “excessive.” Quoting Merriam-Webster’s Collegiate Dictionary 404 (10th ed 1999), employer states that “the ordinary meaning of‘excessive’ is ‘exceeding what is usual, proper, necessary or normal.’ ” Based on that definition, employer argues that, as applied to a prosthetic device, “excessive” and the relevant other adjectives listed in ORS 656.704(3)(b)(B) (i.e., “inappropriate,” “ineffective”) connote “an issue of need for the particular device,” demonstrating a legislative intent “to place jurisdiction with the director where the dispute presents the question whether the device in question is needed for treatment of the clamant’s medical condition.” According to employer, because “there is no issue of need here,” the dispute with claimant over payment for claimant’s hearing aid is not governed by ORS 656.704(3)(b)(B), but is governed by ORS 656.704(3)(b)(A).
The definition of “excessive” to which employer refers does not restrict “excessive” to a need determination. Moreover, in a sentence not cited by employer, the same dictionary entry notes that the term “excessive” “implies an amount or degree too great to be reasonable or acceptable.” See also Webster’s Third New Int’l Dictionary 792 (unabridged ed 2002) (defining the term “excessive” as “whatever exceeds the reasonable, usual, proper, necessary, just, or endurable”). The dictionary is not particularly helpful in determining the meaning of statutory references to “excessive.”
Affirmed.
The board, the administrative law judge, and the parties use the term “jurisdiction.” However, the relevant statute, ORS 656.704, speaks of the issue as the respective authority of the director and the board to conduct hearings. We choose to denominate the issue as one of “authority’ rather than “jurisdiction.” We do not attempt to definitively define either.
Claimant’s employer was initially Willamette Industries. Weyerhaeuser later acquired Willamette.
We note that ORS 656.245(l)(e)(E) provides that compensable medical services include “services necessary to monitor the status, replacement or repair of prosthetic devices, braces and supports.”
Where the dispute concerns “a matter other than a matter concerning a claim,” the division is required to refer the matter to the board for a hearing before an ALJ. However, the ALJ’s order is reviewed by the division and the division issues the final order in such a dispute. ORS 656.704(2)(a).