DocketNumber: 1000400, 1000401; A149021
Citation Numbers: 269 Or. App. 404, 344 P.3d 1115
Judges: Haselton, Nakamoto, Wollheim
Filed Date: 2/25/2015
Status: Precedential
Modified Date: 9/9/2022
Providence Health System (Providence) filed a petition for reconsideration, requesting the court to “clarify” three aspects of our decision regarding an order, under ORS 656.325(1), suspending claimant’s compensation for an express period of time. In addition, Providence requests that we correct a mistake in the citation to a subsection of an administrative rule and the description of a statute. We allow the petition for reconsideration. We correct the mistake in the citation to the administrative rule and the description of a statute, but otherwise adhere to our opinion.
Our prior opinion explains the contentious procedural history of this workers’ compensation claim, which dates back to April 2004, see Walker v. Providence Health Systems Oregon, 267 Or App 87, 90-98, 340 P3d 91 (2014), and we will not repeat that history here except when necessary to understand the petition for reconsideration.
One of the issues on judicial review was whether Providence was entitled to an Independent Medical Examination (IME) before closing the claim. The Workers’ Compensation Board concluded that Providence was entitled to an IME before claim closure and, for that reason, the board determined that Providence’s refusal to close the claim was not unreasonable under ORS 656.268(5). Relying on our prior opinion in Providence Health System v. Walker, 252 Or App 489, 289 P3d 256 (2012), rev den, 353 Or 867 (2013), we held that the board correctly declined to award claimant a penalty based on Providence’s refusal to close the claim. Walker, 267 Or App at 100.
Providence’s petition for reconsideration raises three other issues: (A) our interpretation of the order suspending claimant’s compensation beginning June 15, 2009, and continuing until claimant complied with Providence’s request for an IME or the closure of the claim; (B) our standard of review of the board’s decision that Providence could not have “reasonably” known the information that resulted in an increase “by 25 percent or more” in the compensation paid to claimant on an award of “at least 20 percent” permanent disability under ORS 656.268(5)(e); and (C) the beginning and ending dates of claimant’s compensation suspension.
Essentially, Providence repeats the argument made in its briefs. A petition for reconsideration is not an opportunity to do that. Nor is it an opportunity to improve the arguments it made in its briefs, now that it has the advantage of our decision. To the contrary, under ORAP 6.25(l)(e), we disfavor a petition for reconsideration that argues that the court erred in addressing legal issues already in the parties’ briefs. We have already considered Providence’s arguments about the order suspending claimant’s compensation and the effect of the express language in that order upon claim of closure and, for that reason, we do not reconsider that issue.
Next, we consider the standard for reviewing the board’s conclusion that Providence could not have reasonably known the extent of claimant’s disability at the time of claim closure. ORS 656.268(5)(e) requires that a penalty shall be assessed against an employer if the worker’s permanent disability compensation is increased by 25 percent or more on reconsideration and the worker is entitled to at least 20 percent permanent partial disability. The employer is not assessed the penalty if the employer “could not reasonably have known at the time of claim closure” the new information that was the basis of the award of additional permanent disability. Our opinion did not expressly state our standard for review. We correct that omission.
In this workers’ compensation matter, we review the board’s determination for legal error. Whether an action is reasonable depends on the underlying facts and, based on those facts, whether the conclusion the board made constitutes an error of law. ORS 656.298(7); ORS 183.482(7), (8). In addition, ORS 656.268(5)(e) provides that the penalty
Here, the underlying facts are undisputed. Claimant’s attending physician has been consistent in her assessment of the extent of claimant’s permanent disability. Before Providence closed the claim, it knew that the attending physician had consistently rated claimant’s permanent disability at 35 percent. The purpose of the IME was to obtain additional information for closing the claim, even though, as a general matter, only an attending physician or a medical arbiter can rate a claimant’s permanent disability. ORS 656.245(2)(b)(C). Under these circumstances, the failure to re-contact the attending physician for current information was unreasonable, as a matter of law. 267 Or App at 114. As our opinion stated, the Appellate Review Unit of the Department of Consumer and Business Services contacted the attending physician and, based on that information, awarded claimant 35 percent permanent disability. Id. at 92.
Last, Providence also requests that we “state clearly” when the order suspending claimant’s compensation began and ended. The June 15, 2009, order provided that the compensation suspension began June 15, 2009, and ended upon the claim’s closure. Providence issued the notice of closure on November 5, 2009. We see no need for further clarification.
Providence points out that we incorrectly cited OAR 436-060-0095(9), when we referred to it as OAR 436-060-0095(1). See 267 Or App at 111. We correct the opinion to
Petition for reconsideration allowed; former opinion modified and adhered to as modified.
Providence suggests that clarification is necessary to avoid further litigation and is relevant to pending cases. We expressly limit our opinion to the facts and issues presented in these cases and express no opinion on facts and issues that might be pending in other matters.