Venetucci v. Metro

WARREN, P. J.

Claimant seeks review of an order of the Workers’ Compensation Board affirming the administrative law judge’s (ALJ) dismissal of her request for hearing. The issue is whether the ALJ erred by dismissing claimant’s claim because she failed to seek reconsideration of a notice of closure. Because we conclude that claimant was not required to seek reconsideration of the notice of closure, we reverse.

Claimant suffered a compensable heel injury while working for Metropolitan Service District (Metro). Metro’s insurer, SAIF, originally calculated claimant’s average weekly wage at $515 and compensated her based on that amount from August 25, 1993, through December 15, 1993. On May 18, 1994, SAIF sent her a notice of closure. That notice provided that “[deduction of overpaid temporary disability, if any, from unpaid permanent disability is approved.” Claimant was not awarded permanent disability in that notice of closure.

On June 16, 1994, an audit by SAIF alleged that claimant’s modified weekly wage rate was $371.13 and that SAIF had made an overpayment of $2,392.051 SAIF mailed claimant notice of this alleged overpayment the following day, indicating that it would set off the overpayment against any future awards of permanent disability.

On claimant’s motion for reconsideration, the Department of Consumer and Business Services (DCBS) rescinded the May 18 closure as premature.2 SAIF issued a second notice of closure on October 30,1995, that provided an award of $2,237.02 for permanent partial disability. That notice contained the same general language as the first regarding overpayment and setoff. Nothing in the second notice, however, referred specifically to an actual overpayment.

*562On November 28, 1995, SAIF advised claimant by letter that the overpayment was being deducted from her award for permanent partial disability. Claimant did not request reconsideration of the second notice of closure but instead sought a hearing before the Board, contesting SAIF’s amended calculation of her weekly income and alleged overpayment.

SAIF moved to dismiss the request for hearing based on ORS 656.268, which provides, in part:

“(4)(e) If a worker objects to the notice of closure, the worker first must request reconsideration by the department under this section. The request for reconsideration must be made within 60 days of the date of the notice of closure.”

SAIF argues that claimant’s objection was to the second notice of closure and that, having failed to seek reconsideration of that notice, she was prohibited from proceeding directly to hearing. The ALJ agreed, relying on the Board’s decision in William T. Masters, 48 Van Natta 1788 (1997).3

Claimant argues that she was not required to seek reconsideration because her objection was not to the second notice of closure, but, rather, it arose from the subsequent letter informing her that her award of permanent disability was being withheld due to the alleged overpayment. That issue, she argues, is controlled by ORS 656.283(1), which provides, in part:

“Subject to ORS 656.319, any party or the Director of the Department of Consumer and Business Services may at any time request a hearing on any matter concerning a claim, except matters for which a procedure for resolving the dispute is provided in another statute * * (Emphasis supplied.)

ORS 656.704(3) provides that “matters concerning a claim under this chapter are those matters in which a worker’s *563right to receive compensation, or the amount thereof, are directly in issue.” Claimant contends that the letter informing her that her permanent disability was being withheld placed her right to receive compensation directly in issue and she permissibly proceeded by requesting a hearing. We agree.

The underlying issue in this case is whether SAIF correctly calculated claimant’s wage rate for purposes of paying temporary partial disability. That calculation forms the basis for SAIF’s assertion that claimant was overpaid for the period of August 25,1993, through December 15,1993. However, that issue was never reached below because the ALJ and the Board held that claimant’s failure to seek reconsideration of the October 30, 1995, notice of closure precluded her from raising that issue at hearing. ORS 656.268(4)(e) requires that a claimant who objects to a notice of closure must first seek reconsideration of that notice. ORS 656.283(7) prohibits a claimant from raising issues at a hearing that were not raised at reconsideration. Taken together, those statutes preclude a claimant from raising an issue at hearing if that issue stems from an objection to a notice of closure that was not preserved by mandatory reconsideration. The issue here is whether claimant’s claim is an objection to a notice of closure so that it falls within the requirements of mandatory reconsideration.

The deciding question in this case is what is claimant objecting to? For her claim to be barred, she must be objecting to the October 30, 1995, notice of closure. In that notice, SAIF concluded that claimant is “entitled to compensation for Temporary Partial Disability for the period from Aug 23, 1993 through Dec 16, 1993.” Those benefits had already been paid. The notice also provided that claimant was awarded permanent partial disability in the amount of $2,237.02. That money had not yet been paid. The notice contained a provision that, “Deduction of overpaid temporary disability, if any, from unpaid current or future permanent or temporary disability awards or payments is allowed.” On its face, that notice of closure does not reveal SAIF’s intent to withhold claimant’s award of permanent partial disability to recover its alleged overpayment of temporary benefits.

*564However, SAIF and the dissent argue that SAIF’s earlier letter informing claimant of the overpayment put claimant on notice of its intent to withhold payment. While that might be true, the fact that claimant was on notice of SAIF’s intent should not be construed to mean that claimant must seek reconsideration of a notice of closure with which she does not object. Claimant had no objection to any award provided in the notice of closure. She did not object to either the time period established for partial disability or the award of permanent disability. In fact, claimant had no objection until 28 days later, when SAIF manifested its intent to withhold payment of her permanent disability. At that point, claimant’s right to receive compensation was placed directly in issue and she subsequently requested a hearing on that issue. Her objection was not to the notice of closure but, rather, to SAIF’s letter informing her that she would not receive her permanent disability payment. That issue can be raised any time at hearing pursuant to ORS 656.283(1).

The dissent places great stock in SAIF’s earlier correspondence, which notified claimant of its intent to deduct future payments in satisfaction of the alleged overpayment and in the notice of closure provision that allowed for setoff of overpayments, “if any,” from future awards. However, nothing in the notice of closure indicated SAIF’s present intention to withhold claimant’s permanent disability to recover the overpayment. Lacking that manifestation of intent, we cannot insert an inference into the notice of closure. ORS 656.268(4)(e) requires claimants seek reconsideration if they object to the “notice of closure,” not if they object to anything associated with a notice of closure. In short, for mandatory reconsideration pursuant to ORS 656.268(4)(e) to preclude further review, a claimant must have an objection that is manifest in the notice of closure. Here, claimant’s objection arose upon receipt of SAIF’s letter informing her of its intent to withhold payment of her permanent disability. That intent was not manifest in the notice of closure.

Reversed and remanded.

The auditor recalculated claimant’s average weekly wage. The manner of calculating claimant’s weekly wage is the issue in the underlying appeal but was never reached below due to the Board holding that it did not have jurisdiction.

The Department found that claimant was not medically stationary at the time of claim closure.

In Masters, relying on facts similar to those found here, the Board noted that an issue arises from the notice of closure when a subsequent audit reveals an overpayment. The Board retreated from that position in Blaine P. Hosey, 50 Van Natta 360 (1998). In Hosey, the Board held that an issue arises from the notice of closure when that issue is manifest in the notice.