Robert G. Green, 66 Van Natta 414 (2014)
The Oregon Workers’ Compensation Board recently published its decision in Robert G. Green, 66 Van Natta 414 (2014). In this case, the Board interpreted OAR 436-030-0023 and confirmed the circumstances under which an employer can rescind and reissue a Notice of Closure. The employer closed the claim on September 24, 2012 with a 29 percent work disability award, and claimant requested reconsideration. Claimant then requested a lump sum payment of his permanent disability award and withdrew his request for reconsideration. The employer issued a second Notice of Closure on October 22, 2012, with no award of permanent impairment. Claimant requested reconsideration, contesting the validity of the October 22, 2012 Notice of Closure and requesting enforcement of the September 24, 2012 Notice of Closure.
The Board upheld the ARU and ALJ by affirming that, under OAR 436-030-0023, the October 22, 2012 Notice of Closure validly rescinded the September 24, 2012 Notice of Closure and simultaneously reclosed the claim. Citing Rick Loucks, 65 Van Natta 628 (2013), the Board rejected claimant’s argument that the initial request for reconsideration precluded the employer’s subsequent rescission under OAR 436-030-0023(1). Loucks stands for the proposition that a reconsideration dismissal, without prejudice, does not preclude a subsequent reconsideration proceeding. The Board extended that reasoning to hold that, “after the ARU dismissed claimant’s request for reconsideration, and before the 60-day statutory appeal period expired, OAR 436-030-0023(1) again allowed the employer to issue a rescission or correction of its September 2012 Notice of Closure.”
The Board also confirmed the October 22, 2012 rescission occurred prior to the “expiration of the appeal period” outlined in ORS 656.268(5)(c). Specifically, claimant was unsuccessful in arguing that his lump sum payment request extinguished the appeal period. The current versions of ORS 656.230(1) and OAR 436-060-0060(1) were cited to distinguish Cayton v. Safelite Glass Corp., 231 Or App 644 (2009) and confirm that an employer is not required to pay a lump sum award if the award has not become final by operation of law. Consequently, the Board held “the appeal period for a Notice of Closure continues after a claimant makes a lump sum request.”
This Board decision provides valuable insight into the rights and responsibilities of an employer relating to claim closure and reconsideration. If you would like to discuss these issues further, do not hesitate to contact any of the attorneys in our Oregon practice group.