Kraai v. Bureau of Fire & Police Disability & Retirement Fund

ORTEGA, P. J.

At issue in this case is whether the City of Portland Bureau of Fire and Police Disability and Retirement Fund (the fund) correctly denied claimant’s application for disability benefits. The fund appeals the reviewing court’s general judgment granting a writ of review setting aside the fund’s denial of benefits to claimant. The fund contends that the time limitation in the rule on which it relied to deny claimant disability benefits begins to run when a member of the fund first receives treatment for a condition that the member subjectively believes to be a worsening of a prior service-connected injury. We disagree with the fund’s interpretation of the time-limitation rule and, accordingly, conclude that the fund has not established that the reviewing court erred in setting aside the fund’s denial of benefits. We affirm.

Claimant works as a firefighter for the City of Portland Fire and Rescue, which entitles him to disability benefits under the Fire and Police Disability, Retirement and Death Benefit Plan (the plan), adopted as chapter 5 of the City of Portland’s charter.¹ The plan provides that a board of trustees supervises and controls the fund and that the board establishes the plan’s administrative rules; claim approvals and denials are delegated to a fund administrator. Portland City Charter (charter) § 5-202.

In 1985, claimant fell about five feet through the roof of a burning building while working and landed straddling a beam between his legs. He received medical care and was diagnosed with a possible hairline fracture in his pelvis. For that injury, the fund approved claimant’s application for disability benefits. Over time claimant continued to experience pain in his pelvic area, and, in 2006 and 2008, he sought treatment, but imaging tests did not indicate an abnormality.

On January 19,2009, claimant’s pain and symptoms persisted, and he again sought treatment. On that occasion, a urologist, Dr. Ackerman, diagnosed his symptoms, which included, among other things, a lump in the middle of his penile shaft that was consistent with Peyronie’s disease. Ackerman discussed treatment options with claimant, including surgery. Claimant told Ackerman that he believed that his condition was related to the 1985 injury, but Ackerman’s report did not include any mention that claimant’s Peyronie’s disease was related to work or to his prior injury. Ackerman prescribed medication to treat claimant’s symptoms and saw claimant again on June 22, 2009; they again discussed surgery as a way to treat claimant’s condition. Once again, Ackerman did not, in his report, relate claimant’s condition to any prior injury or to claimant’s job.

Claimant decided to proceed with the surgery and met with Dr. Yoshinaga for a preoperative appointment on August 25, 2009. At that time, Yoshinaga told claimant that his Peyronie’s disease was related to his work injury. He was the first treating physician to do so. Yoshinaga completed physician’s disability reports, which noted that claimant was not authorized to work for the two weeks following his scheduled September 14, 2009, surgery. Yoshinaga’s “Attending Physician Report” noted, under the heading, “Subjective Findings,” that Ackerman had stated (without indicating how the statement was communicated to Yoshinaga) that claimant’s Peyronie’s disease “is caused by previous injury to the penis and scar tissue.”

On the day of claimant’s preoperative appointment, claimant completed a “disability in line of duty” report for a disability claim, noting the date of his 1985 fall as the date that his injury occurred and that he would need time off from work. The surgery was rescheduled and performed on October 21, 2009. As a condition of making a compensability decision on his claim, the fund required claimant to undergo two independent medical examinations on November 5, 2009. In its letter to the medical examiners, Drs. Kaempf and Rischitelli, the fund asked them to determine, “[g]iven the work history and medical records, in your opinion, is there medical evidence, supported by objective findings!,] that the [1985] on-the-job injury was a significant factor in the cause of [claimant’s] development of Peyronie’s Disease?” (Underscoring omitted.) Kaempf concluded that claimant’s 1985 injury was a significant factor, and Rischitelli concluded that it was not.

The fund denied the claim, for the reason that the “claim was not filed within 30 days of [claimant’s] alleged injury or illness as required by Section 5.7.03 of the *** Administrative Rules.” That rule provides, in part:

“(A) No disability benefits shall be paid to a Member unless the Member files with the Director a complete and timely application requesting such benefits.

“(D) Applications for disability benefits must be submitted to the Director no later than 30 days after the Member is injured or experiences an illness, unless the Member establishes good cause for failing to do so. Failure to file an application within the time specified bars a Claim for disability benefits.”

Fire and Police Disability and Retirement Fund Rule (FPDR) 5.7.03.

Claimant requested a hearing to contest the denial with the Office of Administrative Hearings (OAH). The fund’s attorney met with Ackerman in anticipation of the hearing. A letter memorializing their conversation noted that Ackerman had confirmed to the fund’s attorney that claimant

“ ‘definitely’ told you during your examination on January 19, 2009 that his symptoms and related objective findings, which you diagnosed as Peyronie’s disease, were caused by his employment as a firefighter for the City of Portland and that he recounted to you the work injuries in that job which he believed caused the Peyronie’s disease. You included this history of work injuries in your January 19, 2009 chart note. You believe that the January 19, 2009 chart note confirms [claimant\ telling you that he believed his need for medical treatment was related to the work injuries described in your chart note. You did not tell [claimant] that his condition or need for treatment were not work related.”

(Emphasis added.)

A hearing was held, and the OAH administrative law judge (AL J) issued an order reversing the fund’s denial of the disability claim, finding that FPDR 5.7.03(D) did not apply to claimant’s request for disability benefits. The fund appealed the ALJ’s order to an OAH appellate review board, a panel of three ALJs. The fund asserted before the panel that the time-limitation rule applied and that the relevant date to begin the time limit for claimant’s recurrence of his service-connected injury “should be the first date of medical treatment or disability related to the worsened condition”; the relevant date, the fund asserted, was no later than claimant’s January 19,2009, appointment with Ackerman in which claimant was diagnosed with Peyronie’s disease and told Ackerman that he believed his condition was related to the prior work injury. The panel agreed with the fund that FPDR 5.7.03(D) applies to a recurrence claim and that the claim was untimely submitted. To interpret the time-limitation rule, it looked to the definitions for the relevant administrative section in FPDR 5.7.01, namely “Recurrence” and “Aggravation.”² “Recurrence” is defined as an

“Aggravation of a service-connected injury/illness or occupational disability that requires Claim re-opening for additional disability benefits and/or medical benefits.”

FPDR 5.7.01. In turn, the term “Aggravation”

“means a Worsening of an approved service-connected injury/illness or occupational disability that occurs after the Member’s condition has been deemed medically stationary.”

Id. The panel reasoned that claimant

“subjectively believed that his condition was related to his 1985 injury. He went to Dr. Ackerman because he believed his condition was getting worse. Thus, as of January 19, 2009, [claimant] believed that he had a worsening of his 1985 injury that required treatment.”

(Emphasis added.) Notably, the panel did not discuss the FPDR 5.7.01 definition of “Worsening,” discussed below, in its analysis. The panel concluded that the time claimant first became aware that his condition was related to his prior injury was sufficient to make claimant eligible for medical or disability benefits for his worsening, and, thus, his January 2009 appointment and diagnosis was a compensable medical benefit that began the 30-day claim-filing deadline.

Claimant then filed a petition for a writ of review in Multnomah County Circuit Court, challenging the panel’s final order that denied his disability claim. The reviewing court reversed the OAH final order and set aside the fund’s denial of the disability claim. Although the reviewing court agreed with the panel’s conclusion that claimant was required to submit a claim or application for a recurrence, it disagreed with the panel’s determination that claimant’s application was untimely. In its written opinion, the reviewing court concluded that the 30-day limitation rule applies to recurrence claims only if the “Recurrence” is a disabling injury, i.e., one that requires time loss, and, thus, the January 2009 diagnosis did not start the time-limitation rule, because at that time, claimant was not eligible for disability benefits because he did not have a disabling injury.³

The parties’ arguments on appeal, consisting of interpretations of the text and context of several charter and rule provisions, are directed at the reviewing court’s conclusion that FPDR 5.7.03(D)’s time limitation begins when the claimant is eligible for time loss as a result of his service-connected injury as a basis for its grant of the writ of review that reversed the panel’s order. We affirm the reviewing court’s grant of claimant’s writ of review to set aside the denial of his claim but do so, as we discuss below, for different reasons. The concurring opinion, however, states that we are “abandon [ing our] duty to review the legal correctness of the reviewing court’s order and judgment” and tasks us with determining the “correct meaning of [FPDR 5.7.03(D)]” so that we may “remand the case to the reviewing court to apply or require the fund to apply that interpretation.” 266 Or App at 265, 265-66 (Sercombe, J., concurring). A discussion of the reviewing court’s reasoning that provides a definitive interpretation of FPDR 5.7.03(D) is, however, unnecessary. That is so because we decide whether there was a sufficient basis under the charter and the rules for the fund to deny claimant benefits based on the fund’s fundamental premise for its argument that claimant’s January 2009 medical visit, when claimant had only his own suspicion that his condition was related to his original injury, triggered the 30-day claim-filing deadline under FPDR 5.7.03(D).⁴ We conclude, as we explain below, that it does not, and, thus, our task ends there.

The fund challenges the reviewing court’s conclusions and urges us to adopt the panel’s analysis of FPDR 5.7.03(D). We construe municipal administrative rules in the same manner as we construe Oregon statutes and administrative rules: We discern the intent of the body that promulgated the law by examining the text, context, and helpful legislative history of the provision in dispute and, if necessary, turn to maxims of construction. See Lincoln Loan Co. v. City of Portland, 317 Or 192, 199, 855 P2d 151 (1993) (“The same rules that govern the construction of statutes apply to the construction of municipal ordinances.”); State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009) (setting out the methodology for statutory interpretation); see also State v. Hogevoll, 348 Or 104, 109-10, 228 P3d 569 (2010) (“In construing an administrative rule, we apply the same analytical framework that applies to the construction of statutes.”).

The rules do not support the fund’s assertion (as the panel ruled) that the time-bar rule begins on the first occasion a member is eligible for medical treatment of a recurrence and that eligibility is established based on a claimant’s subjective belief that his or her condition is related to an approved service-connected injury. According to the fund, the term “is injured” in the rule includes a recurrence, and claimant’s eligibility for benefits to treat the recurrence triggers FPDR 5.7.03(D). A “Recurrence,” as noted earlier, is

“[a]n Aggravation of a service-connected injury/illness or occupational disability that requires Claim re-opening for additional disability benefits and/or medical benefits.”

FPDR 5.7.01. An “Aggravation,” also noted earlier, means

“a Worsening of an approved service-connected injury/ illness or occupational disability that occurs after the Member’s condition has been deemed medically stationary.”

Id. And finally, a “Worsening” means

“objective findings indicating a worsening of the approved service-connected injury/illness or occupational disease based on expert medical opinion or an expert medical opinion explaining why the Member’s symptoms indicate a worsening of the approved service-connected injury/illness or occupational disability.”

Id. Thus, a “Recurrence” requires a worsening of the original injury after it has become medically stationary, and, in particular, the “Recurrence” requires either objective findings that indicate that a prior service-connected injury has worsened based on medical evidence or an expert medical opinion explaining why a claimant’s symptoms indicate that a prior service-connected injury has worsened.⁵ Put in the context of FPDR 5.7.03(D), without those objective findings, and, therefore, without any “Recurrence,” a timeliness requirement for filing a recurrence claim is not at issue if there is not a recurrence of an injury or illness for which a member could file benefits.

We conclude that the fund’s denial of claimant’s disability claim was erroneous because in January 2009 there was no recurrence for which a claim could be filed. The fund’s contention that it “is reasonable to trigger the 30-day deadline in FPDR 5.7.03(D) from the time [claimant] admits he was seeking medical treatment for what he considered to be symptoms related to his service-connected injury” effectively creates a subjective standard that is different from the objective findings or expert medical explanation required by the definition of “Worsening.” (Emphasis added.) The fund’s reliance on claimant’s subjective, nonexpert belief that his condition was related to his prior injury when he sought medical treatment in January 2009 — namely, claimant’s admission that he believed then that his condition arose from the prior injury and Ackerman’s later affirmation that he did not tell claimant otherwise at that time — to establish his eligibility for benefits ignores the objective requirements for establishing a “Worsening.” Put differently, the fund incorrectly treated claimant’s subjective belief about his condition when he received medical treatment from Ackerman in January 2009 as sufficient to begin the 30-day time limitation of FPDR 5.7.03(D). Because that basis was insufficient to deny claimant disability benefits, and because that argument is the fundamental basis for the fund’s contention that we should reverse the reviewing court’s ruling on the writ of review, the fund has not established grounds for reversal.

Affirmed.

1 The plan provides workers’ compensation benefits for the city’s firefighters and police officers, who are considered “Members” of the plan. Members of the plan are exempted from ORS chapter 656, which governs workers’ compensation generally. See ORS 656.027(6) (providing that workers are not subject to ORS chapter 656 if they are “[fjirefighter and police employees of any city having a population of more than 200,000 that provides a disability and retirement system by ordinance or charter”). We have stated that the exemption must be for “equivalent compensation.” See Harrington v. Board of Trustees, 100 Or App 733, 738 n 3, 788 P2d 1019, rev den, 310 Or 133 (1990). (“ORS 656.027(6) defines a class that is exempt from the Workers’ Compensation Law because it is entitled to equivalent compensation. We cannot say that the legislature made an irrational choice in defining such an exemption.”).

2 Unless otherwise noted, we cite and quote the version of the FPDR that was in effect in 2009 and relied upon by the OAH and the parties.

3 Our concern with the conclusion that the need for time-loss benefits begins the 30-day claim-filing deadline is that the conclusion creates an implication that medical benefits are not available to members unless the fund first approves time-loss benefits for a work injury, i.e., work-related injuries that do not require time loss are not compensable by the fund. As the concurring opinion acknowledges, medical expenses are reimbursed after a claim is approved under FPDR 5.7.03. 266 Or App at 272 (Sercombe, J., concurring). Because the concurring opinion concludes that claim approval under FPDR 5.7.03 concerns only injuries that require time-loss benefits, i.e., disabling injuries, 266 Or App at 270 (Sercombe, J., concurring), it follows that medical expense reimbursement would require that a member’s injuries are disabling. If, on the other hand, the term “disability benefits” in FPDR 5.7.03 is understood to mean time-loss benefits and medical-expense reimbursement, as the fund contends, eligibility for medical-expense reimbursement does not require that a service-connected injury is disabling.

A construction of the charter and the rules that has the implication that non-disabling injuries are not compensable by the fund is untenable. Neither party contemplates that the plan should be construed that way. The fund asserts that recurrence claims can be for medical treatment only, noting that the definition of “Recurrence” is an injury that “requires claim re-opening for additional disability benefits and/or medical benefits.” FPDR 5.7.01 (emphasis added). Claimant, on appeal, refers to the former version of charter section 5-306(g)(2), which does not limit reasonable medical and hospital expense reimbursement to “accepted” claims. Thus, claimant contemplates that medical-expense reimbursement is separately provided for in FPDR 5.9.01 et seq. without any need for a claimant to obtain fund approval for time loss.

Moreover, the implication that benefits for nondisabling injuries are not compensable by the fund runs contrary to the need to make the fund benefits equivalent to workers’ compensation benefits, 266 Or App at 250 n 1. Oregon’s workers’ compensation laws provide for compensation for nondisabling injuries that are aggravations of injuries. See ORS 656.005(7)(d) (“A ‘nondisabling compensable injury’ is any injury which requires medical services only.”); ORS 656.273 (providing for worsened conditions).

4 Claimant filed his claim application forms on August 25, 2009, the day he was informed that his condition was related to his 1985 work injury, required surgery, and that he would need two weeks of time loss to recover from the surgery. The fund does not contend that, if January 19, 2009 was the incorrect date to trigger the 30-day deadline, then there is some other reason that the August 25, 2009, date was untimely Consequently, we need not address the reviewing court’s rationale for determining that the August 2009 disability claim filing was timely.

5 We recognize the circularity of the definition. The definition of “Worsening” in Rule 5.7.01 has been amended, effective March 25, 2014, to mean

“objective findings indicating a deterioration of the approved service-connected injury/illness or occupational disability based on expert medical opinion or an expert medical opinion explaining why the Member’s symptoms indicate a worsening of the approved service-connected injury/illness or occupational disability.”

(Emphasis added.)