EBI Companies v. Freschette

VAN HOOMISSEN, J.,

dissenting..

I respectfully dissent.

ORS 656.236(1) invalidates any “release” by a worker *532of any rights under ORS 656.001 to 656.794. ORS 656.289(4) provides in relevant part:

“Notwithstanding ORS 656.236, in any case where there is a bona fide dispute over compensability of a claim, the parties may, with the approval of a referee, the board or the court, by agreement make such disposition of the claim as is considered reasonable.”

The Board has taken the position that the statute does not mean what it says and that a dispute as to whether a worsened condition is compensable is not a “bona fide dispute over compensability.” What else is it? The Board’s conclusion that a present settlement of a claim with future effects is a prohibited release is not warranted in fact or in law.

This case is controlled by Seeber v. Marlette Homes, Inc., 30 Or App 233, 566 P2d 926 (1977). There, claimant filed a claim in 1975 alleging that his 1969 injury had been aggravated. The 1969 claim had been resolved through settlement. We held that a bona fide dispute over the compensability of the 1969 injury existed and that the agreement settling that claim barred claimant’s 1975 aggravation claim based on the 1969 injury. Our rationale was that, because the extent of disability resulting from the 1969 injury had not been established, there was no way to determine the extent of the 1975 aggravation without litigating the extent of the 1969 injury. That rationale is equally applicable here.

Claimant has agreed to settle his present aggravation claim and to forego any future claims based on the underlying injury. His agreement goes no further than the agreement in Seeber. Without such an agreement, claimant could file an aggravation claim in the future. The extent of his 1982 worsening would be in issue. ORS 656.273(1). Necessarily, inquiry then would be made into the extent of the 1982 worsening. Allowing such an inquiry would frustrate the purpose of disputed claim settlements. ORS 656.289(4).

The Board’s paternalistic approach makes no economic sense. This is an arm’s-length settlement. Claimant is represented by a lawyer. The 1982 worsening claim is disputed. Claimant has read the settlement agreement, and he has discussed it with his lawyer. He and his lawyer want the settlement approved. That ought to be enough! This is not a *533release, it is a settlement. In the absence of fraud, overreaching or other unconscionable conduct, neither the Board nor this court should set aside a negotiated settlement. We should read the statute to mean what it says.

As the referee noted, if claimant’s 1982 claim goes to hearing, he may receive no compensation. The carrier is willing to pay something now to avoid the possibility of future litigation and, perhaps, liability, and to close its file. That is what negotiated settlements are all about. The Board’s rule is detrimental to the goal of negotiated settlements and it should be rejected.