OWN MOTION DIGEST (Updated through April 30, 2010)

NOTE:  This resource is intended to be used as a research tool; it does not list all relevant Own Motion cases.  The "Workers' Compensation Board News & Case Notes" provides more detailed summaries of cases.  The complete text of cases can be found in Van Natta.  In addition, the Board's "Significant & Noteworthy Cumulative Subject Index" (organized by the year of publication in Van Natta) provides access to select Own Motion cases by topic.  All of these resources are available on the Board's website.  The Board's web site also provides information about Own Motion claim processing, including frequently asked questions, forms, bulletins, rules, and claim processing scenarios.

The following Own Motion forms and bulletins are available on the Board's website:

Carrier's Own Motion Recommendation (Form 440-2806)
Bulletin No. 1-2005, Effective January 1, 2006

The following Own Motion forms and bulletins are available on the Workers' Compensation Division's website

Notice of Voluntary Reopening Own Motion Claim (Form 440-3501)
Notice of Closure: Own Motion Claim (Form 440-2066)
Bulletin No. 195 (Revised), Effective January 1, 2006

CAVEAT:  All hyperlinks in this document are to the current versions of the statutes and rules, which are not necessarily the version applied in the cited cases.  Hyperlinks are provided for cited Van Natta cases (published in 2002 and thereafter) and cited court cases (published in 1998 and thereafter).

INDEX

I.    GENERAL PRINCIPLES AND JURISDICTION

  1. Statutory Basis; Administrative Rules; Board's Web Site
    1. (§1) Statutory Basis
    2. (§2) Administrative Rules
    3. (§3) Board's Web Site
  2. Jurisdiction Limited to "Post-Aggravation Rights" Claims
    1. (§4) "Post-Aggravation Rights" Claims - Jurisdiction
    2. (§5) Application of ORS 656.278(3)
  3. (§6) Three Types of "Post-Aggravation Rights" Claims
  4. (§7) "Pre-1966 Injury" Medical Service Claim
  5. (§8) Enforcement of Board's Own Motion Orders
  6. Restrictions on Board's Own Motion Authority
    1. (§9) Previous Settlements and Noncompensability Findings
    2. (§10) Exhaustion of Alternative Remedies
    3. (§11) No Jurisdiction Over Reimbursement from Reopened Claims Program
    4. (§12) No Jurisdiction to Suspend Temporary Disability
  7. (§13) Jurisdiction Before January 1, 2006
  8. (§14) Jurisdiction Beginning January 1, 2006

II.  ELEMENTS OF OWN MOTION CLAIMS

  1. (§15) "Worsened Condition" Claim
    1. (§16) Claim
    2. (§17) "Determined to be Compensable"
    3. (§18) Inability to Work
    4. (§19) Medical Treatment
    5. (§20) Work Force See also Entitlement to Temporary Disability §38
  2. (§21) "Post-Aggravation Rights" New or Omitted Medical Condition Claim
    1. (§22) Claim
    2. (§23) "Determined to be Compensable"
    3. (§24) No other requirements for reopening
  3. (§25) "Pre-1966 Injury" Medical Service Claim

III. BENEFITS

  1. (§26) Interim Compensation - Not Required
  2. (§27) Vocational Services - Not Available
  3. (§28) Medical Services for "Pre-1966 Injuries"
  4. (§29) Temporary Disability Benefits
  5. (§30) Permanent Disability Benefits - Only for "Post-Aggravation Rights" New or Omitted Medical Conditions

IV. CLAIM PROCESSING

  1. (§31) Processing the Own Motion Claim
    1. (§32) 30-Day Processing Period for "Worsened Condition" and "Post-Aggravation Rights" New or Omitted Medical Condition Claims
    2. (§33) 60-Day Processing Period for "Pre-1966 Injury" Medical Condition Claims
    3. (§34) Voluntary Reopening
    4. (§35) Carrier's Recommendation For or Against Claim Reopening
  2. (§36) Board's Own Motion Order
  3. (§37) Consent to Designation of an "ORS 656.307" Paying Agent in Own Motion Claim
  4. Processing the Reopened Own Motion Claim
    1. (§38) Entitlement to Temporary Disability Benefits See also Work Force §20
    2. (§39) Payment of Temporary Disability Benefits
  5. Closing the Claim
    1. (§40) Notice of Closure
    2. (§41) Medically Stationary
    3. Permanent Partial Disability
      1. (§42) Director's Standards
      2. (§43) ORS 656.278(2)(d) "limitation"
      3. (§44) "Offset"
    4. (§45) Permanent Total Disability
    5. (§46) Request for Board Review of Carrier Closure
  6. Board Review of Carrier Closure
    1. (§47) Medical Arbiter Evaluation
    2. (§48) Board Order Reviewing Carrier Closure

V.   ATTORNEY FEES, PENALTIES, AND PENALTY-RELATED ATTORNEY FEES

  1. (§49) "Out-of-Compensation" Attorney Fees; OAR 438-015-0080(1)-(4)
  2. (§50) "Assessed" Attorney Fees
  3. (§51) Penalties and Penalty-Related Attorney Fees

VI. RECONSIDERATION AND APPEAL

  1. (§52) Reconsideration
  2. Appeal
    1. (§53) Perfecting the Appeal
    2. Limitations on Appeal
      1. (§54) Procedural Limits
      2. (§55) No Substantive Limits

I. GENERAL PRINCIPLES AND JURISDICTION

A.  Statutory Basis; Administrative Rules; Board's Web Site

1.  (§1) Statutory Basis

The term "Own Motion jurisdiction" derives from ORS 656.278.  That statute provides, subject to certain limits and exceptions, that the "power and jurisdiction of the Workers' Compensation Board shall be continuing, and it may, upon its own motion, from time to time modify, change or terminate former findings, orders or awards if in its opinion such action is justified[.]"  ORS 656.278(1).

Statutes concerning Own Motion issues include:  ORS 656.267; ORS 656.278; ORS 656.625.

2.  (§2) Administrative Rules

Effective January 1, 2006, administrative rules for Own Motion jurisdiction (Chapter 438, Division 012) were adopted in response to 2005 statutory amendments to ORS chapter 656.  (WCB Admin. Order No. 3-2005, eff. January 1, 2006.)  The rules apply to claims in which a request for compensation under the Board's Own Motion jurisdiction is in existence or arose on or after January 1, 2006.  OAR 438-012-0018.

Administrative rules regarding attorney fees in Own Motion cases are found at OAR 438-015-0080.

      3.  (§3) Board's Web Site

The Board's web site provides information about Own Motion claim processing, including frequently asked questions, forms, bulletins, rules, and claim processing scenarios.  The web site is at:  http://www.cbs.state.or.us/external/wcb/index.html

B.  Jurisdiction Limited to "Post-Aggravation Rights" Claims

1.  (§4) "Post-Aggravation Rights" Claims - Jurisdiction

The Board's Own Motion jurisdiction is limited to those claims in which the five-year aggravation rights under ORS 656.273(4) have expired.  Miltenberger v. Howard's Plumbing, 93 Or App 475 (1988); Richard A. Wiland, 55 Van Natta 1847, 1848 (2003) (Board has no jurisdiction to address validity/compensability of an initial occupational disease claim; Board's jurisdiction is limited to claims for which a claimant's aggravation rights have expired); Von D. Bailey, 55 Van Natta 417, recons, 55 Van Natta 851 (2003) (new or omitted medical condition claim initiated before expiration of aggravation rights under ORS 656.273 was not in the Board's Own Motion jurisdiction; such claim must be processed under ORS 656.262); John R. Waldrup, 61 Van Natta 619 (2009) (same; applies Bailey).

The filing requirements of ORS 656.273 are jurisdictional.  SM Motor Co. v. Mather, 117 Or App 176, 180 (1992); Timothy D. Beard, 43 Van Natta 432, 433 (1991); Denise A. Robinson, 42 Van Natta 2514 (1990).  The Board has jurisdiction to determine whether a claim comes within its Own Motion jurisdiction.  SAIF v. Reddekopp, 137 Or App 102, 106-07 (1995).

Claims for which aggravation rights have expired are processed under the provisions of ORS 656.278 and the Board's Own Motion rules. ORS 656.278; OAR 438-012-0001 et seq.

Update

2.  (§5) Application of ORS 656.278(3); Carter v. SAIF, 52 Or App 1027 (1981); Coombs v. SAIF, 39 Or App 293 (1979)

The final claim closure under ORS 656.268 may effect Own Motion claim processing.  ORS 656.278(3) provides:  "An order or award made by the board during the time within which the claimant has the right to request a hearing on aggravation under ORS 656.273 is not an order or award, as the case may be, made by the board on its own motion."  Therefore, if a claim is reopened for Own Motion relief within the appeal period for challenging the benefits awarded at the most recent closure made under ORS 656.268, when appropriate, this reopened Own Motion claim must be closed under ORS 656.268 rather than ORS 656.278.  See Carter v. SAIF, 52 Or App 1027, 1031-32 (1981); Coombs v. SAIF, 39 Or App 293, 300 (1979); Alan Kucera, 52 Van Natta 2555 (2000); Tony E. Alfano, 45 Van Natta 205 (1993).

C.  (§6) Three Types of "Post-Aggravation Rights" Claims

The Board's Own Motion jurisdiction includes "post-aggravation rights" claims for:  (1) "worsened condition" claims (ORS 656.278(1)(a)); (2) medical service claims for injuries occurring before 1966, with limited exceptions (ORS 656.278(1)(c)); and (3) new or omitted medical condition claims related to initially accepted claims that were initiated after the expiration of aggravation rights under ORS 656.273 and have been determined to be compensable (ORS 656.278(1)(b)).  See ORS 656.267(3).

D.  (§7) "Pre-1966 Injury" Medical Service Claims

Medical services related to compensable injuries are available under either ORS 656.245 or ORS 656.278(1)(c).  The date of injury determines which statute applies and where jurisdiction over the medical service issue lies.  In general, medical services (including causation issues) for injuries occurring before 1966 are exclusively in the Board's Own Motion jurisdiction.  ORS 656.278(1)(c).  However, there is an exception to this general "pre-1966 injury" rule:  Injuries that occurred within the period from August 5, 1959 through December 31, 1965, and resulted in permanent total disability are entitled to ongoing medical services under ORS 656.245.  Or Laws 1959, ch 589, §2; Paul P. Pluimer, 55 Van Natta 3020, 55 Van Natta 3052 (2003); Brady B. Long, 55 Van Natta 566, 568 (2003); Roy Hansen, 43 Van Natta 990 (1991); William A. Newell, 35 Van Natta 629 (1983).

Medical service claims for injuries occurring on or after January 1, 1966, are processed under ORS 656.245, whether or not aggravation rights have expired on the injury claim.

E.  (§8) Enforcement of Board's Own Motion Orders

The Board has sole jurisdiction to enforce its Own Motion orders.  Orman v. SAIF, 131 Or App 653 (1994); Evalyn V. Stevens, 59 Van Natta 1925 (2007); Lori C. Wilcox, 58 Van Natta 1418 (2006).

F.   Restrictions on Board's Own Motion Authority

1.  (§9) Previous Settlements and Noncompensability Findings

ORS 656.278(7) prohibits the Board from exercising Own Motion authority to "modify, change or terminate former findings or orders:  (a) that a claimant incurred no injury or incurred a noncompensable injury; or (b) approving disposition of a claim under ORS 656.236 [claim disposition agreements] or 656.289(4) [disputed claim settlements]."  Subsection (a) precludes the Board from awarding Own Motion benefits on a claim in which a denial has previously been approved or become final.  Subsection (b) bars the Board from changing its previous approval of a claim disposition agreement or a disputed claim settlement.

Although a claim disposition agreement may have a significant impact on a claimant's rights to future "non-medical service" benefits, such a disposition does not extinguish a claimant's right to have an Own Motion claim for accepted "post-aggravation rights" new or omitted medical conditions reopened and processed to closure.  See Connie T. Campbell (Haberly), 59 Van Natta 1232, 1233 n 1 (2007); Benjamin B. Harvey, 57 Van Natta 3132, 3133 n 1 (2005); Michael L. Reynolds, 57 Van Natta 3053, 3054 (2005); Randy L. Parr, 56 Van Natta 447 (2004) (citing Duane L. Leafdahl, 54 Van Natta 1796, 1799 (2002)).

2.  (§10) Exhaustion of Alternative Remedies

Board rules allow for postponement of Own Motion proceedings when the worker's entitlement to benefits under Own Motion is contingent on the exhaustion of other administrative remedies, such as pending litigation under ORS 656.283 to ORS 656.298, ORS 656.307, or ORS 656.308, or pending proceedings before the Workers' Compensation Division regarding a medical review under ORS 656.245, ORS 656.260, or ORS 656.327.  OAR 438-012-0050; Cindy L. Grose, 58 Van Natta 2456 (2006) (Board postponed action on request for Own Motion relief until resolution of the pending medical treatment dispute issue before the Director).

However, the exhaustion requirement pertains only to other "administrative" remedies, not judicial remedies.  Accordingly, once a compensability dispute or medical services dispute is finally determined at the Board or Workers' Compensation Division level, the Board will proceed with its Own Motion determination even if the parties have appealed the other alternative determinations to the court.  Virgie Webb, 49 Van Natta 731 (1997); Patrick J. Mahlberg, 49 Van Natta 89, 91, recons, 49 Van Natta 165 (1997).

3.  (§11) No Jurisdiction Over Reimbursement from Reopened Claims Program

Jurisdiction to provide reimbursement from the Reopened Claims Program rests with the Director, not the Board.  See SAIF v. Holmstrom, 113 Or App 242 (1992); Wendel P. Harrison, 58 Van Natta 2474, 2479 n 6 (2006); James J. Kemp, 54 Van Natta 491, 511-13 (2002).

4.  (§12) No Jurisdiction to Suspend Temporary Disability

The Board lacks statutory authority to suspend temporary disability under ORS 656.278.  Jordan v. SAIF, 343 Or 208 (2007).  Effective January 1, 2008, the Board deleted the rule (former OAR 438-012-0035(6) (2007)) that had purported to authorize this practice.  WCB Admin. Order No. 2-2007, eff. 1/1/2008.

G.  (§13) Jurisdiction Before January 1, 2006

Before 1987, the Board was authorized to award permanent disability benefits for Own Motion claims.  In 1987, the legislature removed this authority.  See Independent Paper Stock v. Wincer, 100 Or App 625 (1990) (interpreting ORS 656.278(1) (1987), the court determined that, effective January 1, 1988, the Board no longer had Own Motion authority to award permanent disability benefits).  See also State ex rel Borisoff v. Workers' Comp. Board, 104 Or App 603 (1990).

In 1995, the legislature added provisions regarding an injured worker's right to initiate omitted and new medical condition claims at any time.  See ORS 656.262(6)(d) and (7)(a) (1995).  Interpreting these provisions, prior case law held that a new or omitted medical condition claim must be processed under ORS 656.262 and 656.268, even if the aggravation rights on the initial claim had expired.  See Larry L. Ledin, 52 Van Natta 680 (2000), aff'd SAIF v. Ledin, 174 Or App 61 (2001); Johansen v. SAIF, 158 Or App 672, 679-80, adhered to on recons, 160 Or App 579 (1999); John R. Graham, 51 Van Natta 1740, 51 Van Natta 1746 (1999); Michael T. Bergmann, 52 Van Natta 1931 (2000).

Under statutory changes made in 2001, new or omitted medical condition claims related to initially accepted claims that were initiated after the expiration of aggravation rights under ORS 656.273 ("post-aggravation rights" new or omitted medical condition claims) were subject to the Board's Own Motion jurisdiction, including issues concerning compensability of such claims.  Or Laws  2001, ch 865, §§1, 10, 11, 11a, 21, 22(2); ORS 656.267(3) (2001); ORS 656.278(1)(b) (2001); James J. Kemp, 54 Van Natta 491 (2002).

H.  (§14) Jurisdiction Beginning January 1, 2006

In 2005, the legislature amended the statutory scheme for determining compensability of "post-aggravation rights" new or omitted medical condition claims.  These amendments apply to all claims existing or arising on or after January 1, 2006.  2005 Or Laws ch 188, §4(1).  However, they "do not apply to any matter for which an order has become final" before January 1, 2006.  2005 Or Laws ch 188, §4(2).

Under ORS 656.267(2) and (3), whether or not the claimant's aggravation rights have expired, new or omitted medical condition claims are processed under ORS 656.262, including the issuance of an acceptance or denial of such a claim.  If a denial is issued, the claimant may request a hearing under ORS 656.283 and compensability is determined by the Hearings Division in the first instance, with appeal to the Board in its "regular" jurisdiction (ORS 656.295) and to the courts (ORS 656.298).  ORS 656.267(2)(b).  Thus, claim processing issues regarding the acceptance or denial of such claims, including those initiated after expiration of aggravation rights, are subject to the jurisdiction of the Hearings Division in the first instance.  ORS 656.283(7); ORS 656.704(3)(a); Bradley J. McKinley, 61 Van Natta 324, 324 n 1 (2009) (issue of whether the carrier untimely accepted "post-aggravation rights" new medical condition claim was subject to Hearings Division jurisdiction in first instance); Sandra J. Andrews, 60 Van Natta 2361, 2363 n 1 (2008); Robert B. Reese, 58 Van Natta 1972, 1978, recons, 58 Van Natta 2625 (2006).

New or omitted medical condition claims that "have been determined to be compensable and that were initiated after the rights under ORS 656.273 expired shall be processed as requests for relief under the Workers' Compensation Board's own motion jurisdiction pursuant to ORS 656.278(1)(b)."  ORS 656.267(3).  Thus, Own Motion claim processing is triggered when a "post-aggravation rights" new or omitted medical condition claim is "determined to be compensable."  James W. Jordan, 58 Van Natta 34 (2006).  Because there are no additional statutory requirements for reopening such a claim, the carrier must either: (1) voluntarily reopen the claim; or (2) submit a "Carrier's Own Motion Recommendation" to the Board.  ORS 656.278(5); OAR 438-012-0030(1).  If the claim is never determined to be compensable, the carrier's responsibility for the processing of the Own Motion claim does not materialize.  WCB Admin. Order No. 3-2005, eff. January 1, 2006, Order of Adoption, page 3; OAR 438-012-0001(4); OAR 438-012-0030(1); James W. Jordan, 58 Van Natta 34, 37 (2006).

As with a "post-aggravation rights" new or omitted medical condition claim under ORS 656.267(3), a "worsened condition" claim becomes a request for Own Motion relief when it "has been determined to be compensable."  At this point the processing of a "worsened condition" claim becomes subject to the Board's rules regarding Own Motion claims.  Jimmie L. Taylor, 58 Van Natta 75 (2006).  As with "post-aggravation rights" new or omitted medical condition claims, if the "worsened condition" claim is never determined to be compensable, the carrier's responsibility for the processing of the Own Motion claim does not materialize.  Jimmie L. Taylor, 58 Van Natta 75, 77 (2006).

II. ELEMENTS OF OWN MOTION CLAIMS

A.  (§15) "Worsened Condition" Claim

After a claim for a "worsened condition" has been made and determined to be compensable, the claimant must satisfy three additional requirements to be entitled to Own Motion relief for the "worsened condition:"  (1) inability to work caused by the worsening; (2) requisite medical treatment required by the worsening; and (3) work force status.  ORS 656.278(1)(a).

Update:

1.  (§16) Claim

A claim for a "worsened condition" is a "written request by or on behalf of a claimant for temporary disability compensation or claim reopening regarding a worsened condition that has been determined to be compensable and that was initiated after" expiration of aggravation rights under ORS 656.273.  OAR 438-012-0001(2)(a).

2.  (§17) "Determined to be Compensable"

A "worsened condition" claim becomes a request for Own Motion relief only after it "has been determined to be compensable."  OAR 438-012-0001(2)(a).  Until then, there is no "Own Motion claim" for the carrier to process under ORS 656.278(1)(a).  Jimmie L. Taylor, 58 Van Natta 75, 77 (2006) (if a disputed "current condition" or medical services claim related to a "worsened condition" is never "determined to be compensable" under the Own Motion rules, the carrier's responsibility for the processing of the "worsened condition" claim does not materialize).

For a "worsened condition," "determined to be compensable" means:  (a) the carrier does not dispute compensability of or responsibility for the claimed condition, that is, the carrier has not issued a denial within the 60-day time period prescribed under ORS 656.262 or ORS 656.308(2); or (b) an order from an Administrative Law Judge, the Board, or the court has found the claim or condition compensable and the responsibility of the carrier.  OAR 438-012-0001(3).

The Board's Hearings Division has initial jurisdiction over "current condition" and medical service compensability disputes (with the exception of "pre-1966 injury" medical service claims, as discussed in §7, above), even for "worsened condition" claims in Own Motion status.  ORS 656.262; ORS 656.308(2); Marvin D. Saddler, 59 Van Natta 306, 308-09 (2007); Jeremy Andrews, 58 Van Natta 2378 (2006); Eva M. Tucker, 55 Van Natta 2577 (2003).

Update:

3.  (§18) Inability to Work

The worsening of the compensable injury must result in the worker's inability to work.  ORS 656.278(1)(a).  This inability to work need not be total; a partial inability to work is sufficient.  Gregory Ray, 57 Van Natta 2888, 2891 (2006) (modified work release represented partial inability to work and satisfied "inability to work" factor); Jama Jarrell, 55 Van Natta 2755 (2003); James J. Kemp, 54 Van Natta 491, 501-02 (2002).

Whether a worsening of a compensable injury results in an "inability to work" presents a medical question that must be answered by persuasive medical evidence.  The Board cannot infer that a medical treatment will result in an inability to work.  SAIF v. Calder, 157 Or App 224, 227-28 (1998) ("The Board is not an agency with specialized medical expertise entitled to take official notice of technical facts within its specialized knowledge."); Theron W. Stiehl, 58 Van Natta 3209, 3210 (2006) (in absence of supporting medical opinion, the claimant's surgery was insufficient to establish an "inability to work" under ORS 656.278(1)(a)); Gerald D. Duren, 58 Van Natta 1706, 1708 (2006); Alan G. Jones, 55 Van Natta 429 (2003) (physician's release to light duty established partial "inability to work," which is sufficient).

An attending physician's "retroactive" time loss authorization is sufficient to satisfy the "inability to work" requirement under ORS 656.278(1)(a).  Lack of a "contemporaneous" time-loss authorization does not affect the physician's persuasiveness concerning the "inability to work" requirement for purposes of claim reopening, but such an authorization would affect the carrier's obligation to pay temporary disability.  James J. Kemp, 54 Van Natta 491, 509-10 (2002).

4.  (§19)Medical Treatment

The worsening of the compensable injury must require hospitalization or inpatient or outpatient surgery, or other curative treatment prescribed in lieu of hospitalization that is necessary to enable the injured worker to return to work.  ORS 656.278(1)(a).

"Surgery" is defined as an invasive procedure undertaken for a curative purpose that is likely to temporarily disable the worker.  "Hospitalization" is defined as a nondiagnostic procedure that requires an overnight stay in a hospital or similar facility.  The third type of qualifying treatment requires establishment of three elements:  (1) curative treatment (treatment that relates to or is used in the cure of diseases, tends to heal, restore to health, or to bring about recovery); (2) prescribed (directed or ordered by a doctor) in lieu of (in the place of or instead of) hospitalization; that is (3) necessary (required or essential) to enable (render able or make possible) the injured worker to return to work. ORS 656.278(1)(a); Anthony E. Langley, 59 Van Natta 2237 (2007); Larry D. Little, 54 Van Natta 2536, 2546 (2002).

To satisfy the third type of qualifying treatment, all three elements must be established.  Robert W. Fair, 59 Van Natta 316, 317-18 (2007); Mark R. Gescher, 55 Van Natta 1956 (2003) (ORS 656.278(1)(a) not satisfied where, although treatment (prescription medication) was arguably curative and necessary to enable the claimant to return to work, there was no evidence that the treatment was prescribed in lieu of hospitalization); Peter B. Wallen, 55 Van Natta 1905 (2003) (ORS 656.278(1)(a) satisfied where attending physician's unrebutted opinion established that the claimant's epidural injections were curative treatment prescribed in lieu of hospitalization for lumbar surgery that was necessary to enable him to return to work).  ORS 656.278(1)(a) requires "other curative treatment prescribed in lieu of hospitalization," not "in lieu of surgery."  Ron L. Merwin, 56 Van Natta 2334 (2004) ("hospitalization" and "surgery" are not the same thing; surgery does not necessarily require hospitalization).

Whether a worsening of the compensable injury requires hospitalization, inpatient or outpatient surgery, or "other curative treatment prescribed in lieu of hospitalization that is necessary to enable the injured worker to return to work" presents a medical question that must be answered by persuasive medical evidence.  The Board cannot infer that a treatment satisfies one of the required medical treatments listed in ORS 656.278(1)(a).  SAIF v. Calder, 157 Or App 224, 227-28 (1998) ("The Board is not an agency with specialized medical expertise entitled to take official notice of technical facts within its specialized knowledge"); Terry L. Smith, 55 Van Natta 2763 (2003).

The required medical treatment need not have been performed, just recommended and the recommendation not withdrawn.  Corey A. Otterson, 56 Van Natta 363 (2004) (physician's recommendation that the claimant undergo surgery for compensable condition sufficient, surgery need not have been performed or scheduled to qualify for reopening under ORS 656.278(1)(a)).  However, the "possibility" of one of the three qualifying medical treatments listed in ORS 656.278(1)(a) is not sufficient to satisfy the medical treatment requirement for reopening a "worsened condition" claim.  Vicki M. Weaver, 56 Van Natta 2862 (2004); Jeffrey D. Dugan, 56 Van Natta 550 (2004).

The otherwise qualifying medical treatment must be reasonable and necessary treatment for the compensable condition, an issue that is within the Workers' Compensation Division's jurisdiction.  If there is an unresolved dispute (or the dispute has been resolved against the worker) regarding reasonableness and necessity of a proposed medical treatment, the medical treatment requirement is not satisfied and reopening under ORS 656.278(1)(a) is not appropriate.  Victor J. Cervantes, 58 Van Natta 755 (2006); Carol Orsetti, 55 Van Natta 1595 (2003).

Update:

5.  (§20)Work Force

To qualify for reopening of a "worsened condition" claim, the worker must be in the work force at the time of disability as defined under the criteria in Dawkins v. Pacific Motor Trucking, 308 Or 254 (1989).  In Dawkins, the court concluded that a claimant is in the work force at the time of disability if he or she is:  (1) engaged in regular gainful employment; or (2) not employed, but willing to work and seeking work; or (3) not employed, but willing to work and is not seeking work because a work-related injury has made such efforts futile.  Dawkins, 308 Or at 258; James J. Kemp, 54 Van Natta 491, 502-03 (2002).

In determining whether a worker is in the work force for purposes of  reopening a "worsened condition" claim, the "date of disability" is the date the worker's condition worsened:  (1) resulting in partial or total inability to work; and (2) requiring (including a physician's recommendation for) hospitalization, or inpatient or outpatient surgery, or "other curative treatment prescribed in lieu of hospitalization that is necessary to enable the injured worker to return to work."  David L. Hernandez, 55 Van Natta 30 (2003); Thurman M. Mitchell, 54 Van Natta 2607 (2002).  The "date of disability" is the date on which both of these factors are satisfied.  Ronald L. Self, 56 Van Natta 1043 (2004); Robert J. Simpson, 55 Van Natta 3801 (2003).

The relevant time period for determining whether the claimant was in the work force is the time prior to the "date of disability," when the claimant's condition worsened resulting in an inability to work and requiring requisite medical treatment under ORS 656.278(1)(a).  See SAIF v. Blakely, 160 Or App 242 (1999); Wausau Ins. Companies v. Morris, 103 Or App 270, 273 (1990); Stuart T. Valley, 55 Van Natta 475, 477 (2003) (the claimant did not establish that he was in the work force before his "date of disability" because there was no evidence that he was employed or making reasonable efforts for find employment during six month period prior to "date of disability" and no medical evidence of "futility"); Paul M. Jordan, 49 Van Natta 2094 (1997).

Whether a work-related injury has made work search efforts futile is a medical question that must be answered by persuasive medical evidence.  The Board cannot infer futility.  Ronald Conway, 58 Van Natta 1347, 1350 (2006); Karon A. Hall, 56 Van Natta 57, 59-60 (2004); Stuart T. Valley, 55 Van Natta 2521 (2003) (Board declined to refer the "futility" issue for a fact-finding hearing regarding "social/vocational" factors, finding that proof of the claimant's "futility" argument depended on medical evidence, not his subjective view that he was limited by his age, education, and vocational experience); Jack M. Sanders, 55 Van Natta 1642, 1646-49, recons, 55 Van Natta 2019 (2003).

An unchallenged statement from the claimant that he or she is willing to work, but not looking for work because the compensable injury made it futile for him or her to obtain and perform any type of work is sufficient to establish "willingness to work," but not "futility," which must be established by persuasive medical evidence. Jacqueline M. Lampkin, 54 Van Natta 1803 (2002), recons, 55 Van Natta 2592 (2003); Henry Williams, 53 Van Natta 2 (2001).

The receipt of unemployment benefits is prima facie evidence that claimant is willing to work and is making reasonable efforts to obtain employment.  Valerie A. Upham, 56 Van Natta 1257, 1257 (2004); Gheorghe Morar, 55 Van Natta 882, 884 (2003).

Update:

B.  (§21) "Post-Aggravation Rights" New or Omitted Medical Condition Claim

A claimant must satisfy only two requirements for the reopening of an Own Motion claim for a "post-aggravation rights" new or omitted medical condition.  First, the new or omitted medical condition claim must have been initiated under ORS 656.267(1) after the expiration of the claimant's aggravation rights under ORS 656.273.  Second, the new or omitted medical condition must be determined to be compensable as defined under OAR 438-012-0001(4).  ORS 656.267(3); ORS 656.278(1)(b); OAR 438-012-0001(4); John D. Smith, 59 Van Natta 357 (2007); James W. Jordan, 58 Van Natta 34 (2006).

1.  (§22) Claim

Claims for "post-aggravation rights" new or omitted medical conditions are made and processed under ORS 656.267(1) and (2).  However, pursuant to ORS 656.267(3), "post-aggravation rights" new or omitted medical conditions that have been determined to be compensable are processed as requests for Own Motion relief under ORS 656.278(1)(b).  A claim for a "post-aggravation rights" new or omitted medical condition is a new or omitted medical condition that is related to an initially accepted claim that has been determined to be compensable and that was initiated after the rights under ORS 656.273 expired.  OAR 438-012-0001(2)(b).

2.  (§23) "Determined to be Compensable"

A "post-aggravation rights" new or omitted medical condition becomes a claim for Own Motion relief only after it "has been determined to be compensable."  Until then, there is no "Own Motion claim" for the carrier to process under ORS 656.278(1)(b).  ORS 656.267(3); James W. Jordan, 58 Van Natta 34, 37 (2006) (if a disputed "post-aggravation rights" new or omitted medical condition is never "determined to be compensable," the carrier's responsibility for the processing of the "post-aggravation rights" new or omitted medical condition does not materialize).

For a "post-aggravation rights" new or omitted medical condition, "determined to be compensable" means:  (1) the carrier has issued a notice of acceptance under ORS 656.262(7)(a); or (2) the carrier's denial under ORS 656.262(7) or ORS 656.308(2) or de facto denial has been set aside by an order from an ALJ, the Board, or the court.  OAR 438-012-0001(4).

3.  (§24) No other requirements for reopening

Unlike claims for "worsened conditions," there are no additional requirements for reopening a "post-aggravation rights" new or omitted medical condition claim after compensability of that claim has been established.  ORS 656.278(1)(b).

Thus, there is no "inability to work" requirement, no "medical treatment" requirement," and no "work force" requirement for reopening a "post-aggravation rights" new or omitted medical condition claim.  ORS 656.278(1)(b); Donald L. Duquette, 59 Van Natta 691, 692 (2007) (work force status is not relevant to claim reopening under ORS 656.278(1)(b)); Charles Klutsenbeker, 55 Van Natta 2244 (2003) (no "medical treatment" requirement for claim reopening under ORS 656.278(1)(b)).

A "reopened" Own Motion claim does not necessarily result in payment of benefits.  See §38, below, concerning the requirements for the payment of benefits for reopened Own Motion claims.  Nevertheless, the potential lack of entitlement to either temporary or permanent disability does not preclude the reopening of an Own Motion claim for a "post-aggravation rights" new or omitted medical condition.  Nayon Saetern, 58 Van Natta 1459, 1460 (2006); Duane L. Leafdahl, 54 Van Natta 1796, 1799 (2002).

C.  (§25) "Pre-1966 Injury" Medical Service Claim

A "pre-1966 injury" medical service claim is a written request by or on behalf of a claimant for medical benefits for a compensable injury that occurred before January 1, 1966, unless the injury occurred from August 5, 1959 through December 31, 1965 and resulted in an award of permanent total disability.  OAR 438-012-0001(2)(c).  Such claims are processed under OAR 438-012-0037.  ORS 656.278(1)(c).  See §7, above, for discussion of "pre-1966 injury" medical service claims in Own Motion jurisdiction.

III. BENEFITS

A.  (§26) Interim Compensation - Not Required

A carrier is not required to pay interim compensation pending Own Motion claim reopening.  ORS 656.278(1)(a)-(b); Joseph D. Hapka, 59 Van Natta 213 (2007); Edward A. Billman, 55 Van Natta 693, 694 (2003).

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B.  (§27) Vocational Services - Not Available

Vocational services are not available.  ORS 656.278(2)(a); Harsh v. Harsco Corporation, 123 Or App 383, 387 (1993) (claimant not entitled to vocational assistance when claim is in "Own Motion" status); Mark Cavazos, 58 Van Natta 1428, 1429 (2006).

C.  (§28) Medical Services for "Pre-1966 Injuries"

Medical services (including causation issues) for injuries occurring before 1966 are in the Board's Own Motion jurisdiction, with limited exceptions.  See §7, above, for discussion of "pre-1966 injury" medical service claims in Own Motion jurisdiction.

D.  (§29) Temporary Disability Benefits

Temporary disability benefits are available for reopened "worsened condition" and "post-aggravation rights" new or omitted medical condition claims. ORS 656.278(1)(a), (b); Steven L. Harper , 61 Van Natta 1140 (2009); Sandra J. Andrews, 60 Van Natta 2361 (2008); Loyd E. Garoutte, 56 Van Natta 416, 423 n 12 (2004); Mark A. Cavazos, 55 Van Natta 3004, 3008-10 (2003).  The requirements for payment of temporary disability benefits are discussed in §38, below.

E.  (§30) Permanent Disability Benefits - Available Only for "Post-Aggravation Rights" New or Omitted Medical Conditions

Permanent disability benefits, including permanent total disability benefits,  are available for "post-aggravation rights" new or omitted medical conditions.  Permanent disability benefits are not available for "worsened condition" claims.  See ORS 656.278(1)(a)-(b), (2)(d); Goddard v. Liberty Northwest Ins. Corp., 193 Or App 238 (2004); Jimmy O. Dougan, 54 Van Natta 1213, recons, 54 Van Natta 1552 (2002), aff'd Dougan v. SAIF, 193 Or App 767 (2004), vacated, 339 Or 1 (2005); David E. Corliss, 59 Van Natta 2641, 2643 (2007); Michael E. Johnson, 59 Van Natta 2515 (2007); David C. Drader, 58 Van Natta 3093 (2006); James S. Daly, 58 Van Natta 2355, 2360 (2006); Sherlee M. Samel, 56 Van Natta 931, 938 (2004).

When a claim has been reopened pursuant to the Board's Own Motion authority for a "worsened condition" under ORS 656.278(1)(a), the subsequent closure of that claim pertains only to the reopened "worsened condition" claim, which is not statutorily entitled to permanent disability benefits.  Dennis D. Kessel, 55 Van Natta 3651 (2003); Clayton L. Sutherland, 55 Van Natta 2694 (2003); Ginney E. Etherton, 55 Van Natta 2216 (2003).  Permanent disability rating is based only on the "accepted" "post-aggravation rights" new or medical conditions for which a claim was reopened.  Larry Westgaard, 56 Van Natta 1300, 1303 (2004) ("compensability" issues will not be resolved on review of a carrier's Own Motion Notice of Closure).

The requirements for payment of permanent disability benefits are discussed in §§42, 43, 44, below.

IV. CLAIM PROCESSING

A.  (§31) Processing the Own Motion Claim

All Own Motion claims must be first directed to and processed by the carrier.  OAR 438-012-0020(1).

1.  (§32) 30-Day Processing Period for "Worsened Condition" and "Post-Aggravation Rights" New or Omitted Medical Condition Claims

The Own Motion carrier must, within 30 days after the claimed condition has been determined to be compensable under OAR 438-012-0001(3) or (4), either voluntarily reopen the Own Motion claim or submit to the Board a written recommendation for or against reopening. ORS 656.278(5); OAR 438-012-0030(1); Dorothy H. Latta, 58 Van Natta 1657, 58 Van Natta 1645 (2006).  See §§17, 23, above, discussing definitions of "determined to be compensable" under OAR 438-012-0001(3) and (4).

In extraordinary circumstances, the Board may grant an extension of the 30-day period.  OAR 438-012-0030(3).

CAVEAT:  Processing of an Own Motion claim does not end with the determination of compensability for "worsened condition" or "post-aggravation rights" new or omitted medical condition claims.  The carrier must also either voluntarily reopen or submit a Carrier's Own Motion recommendation for such claims.

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2.  (§33) 60-Day Processing Period for "Pre-1966 Injury" Medical Condition Claims

For medical benefit claims under OAR 438-012-0001(2)(c) (relating to "pre-1966 injury" claims), the Own Motion carrier must, within 60 days after receiving the claim, either voluntarily reopen the Own Motion claim or submit to the Board a written recommendation for or against reopening.  ORS 656.278(5); OAR 438-012-0030(2).

In extraordinary circumstances, the Board may grant an extension of the 60-day period.  OAR 438-012-0030(3).

3.  (§34) Voluntary Reopening

When voluntarily reopening an Own Motion claim under ORS 656.278(5), the Own Motion carrier must issue to the worker a Notice of Voluntary Reopening of Workers' Compensation Claim, Form 440-3501, with copies to the worker's attorney, if any, and the Workers' Compensation Division.  OAR 438-012-0030(4).  The Board does not receive a copy of this notice.

A voluntary reopening has the full effect of a claim reopening by order of the Board.  William E. Hartzog, 54 Van Natta 593, 595-96 (2002); James J. Kemp, 54 Van Natta 491, 511-17 (2002).

If a dispute arises out of a voluntary reopening of a claim under ORS 656.278(5), a party may request the Board in its Own Motion jurisdiction to resolve the dispute.  ORS 656.278(5); OAR 438-012-0061; Tamara L. Folkman, 59 Van Natta 1644, 1645 (2007); Terry L. Whitfield, 59 Van Natta 1308, 1310 (2007).

4.  (§35) Carrier's Recommendation For or Against Reopening of a Claim

The carrier's recommendation must be submitted to the Board on a Carrier's Own Motion Recommendation, Form 440-2806.  The carrier must supply all evidence and information required by the form and send copies of the form and supporting evidence to the claimant and the claimant's attorney, if any. OAR 438-012-0030(1)(b).

Consistent with the Board's practice and the recommendation form, the claimant has 14 days from receipt of the Carrier's Own Motion Recommendation to submit his or her written position and any additional written materials to the Board, with copies to the carrier.

B.  (§36) Board's Own Motion Order

After receiving the carrier's Own Motion recommendation, the Board may:  (1) deny reopening the claim for Own Motion relief; (2) grant reopening the claim for Own Motion relief; (3) refer the matter to the Hearings Division for an evidentiary hearing and recommended findings of fact and conclusions; or (4) request additional information/evidence from the parties.  OAR 438-012-0040.  See §37, below (consent to designation of paying agent under ORS 656.307).

The Board may postpone its review when other available remedies could affect its authority to award compensation under ORS 656.278.  OAR 438-012-0050. See §10, above (exhaustion of alternative remedies).

In general, the Board will refer Own Motion determinations for a fact-finding hearing when testimonial and documentary evidence must be further developed or when the factual record is insufficiently developed. Francisco Villagrana, 58 Van Natta 2305, 2305-06 (2006); James S. Daly, 57 Van Natta 200 (2005).  When the record is sufficiently developed to resolve the dispute, the Board generally will conduct its own fact-finding.  Loyd E. Garoutte, 56 Van Natta 416, 416 n 2 (2004) (fact-finding hearing denied where record sufficiently developed to decide premature closure, temporary disability, and permanent disability issues); Edward G. Sprague, 55 Van Natta 2157, 2160 (2003); cf. Louis L. Haron, 48 Van Natta 1128 (1996) (issues involved not only medical opinions but also witness credibility).

When the Board refers a claim to the Hearings Division, the Administrative Law Judge (ALJ) issues an unappealable recommendation regarding findings of fact and conclusions.  OAR 438-012-0040(3).  After receiving the ALJ's recommendation, the Board implements a briefing schedule to allow the parties to submit their respective written positions.  Thereafter, the Board conducts its review and makes the final decision.

C.  (§37) Consent to Designation of a "ORS 656.307" Paying Agent in Own Motion Claim

When a carrier has requested designation of a paying agent pursuant to ORS 656.307 and one or more of the potentially responsible carriers has a claim for which the claimant's aggravation rights have expired, the Workers' Compensation Division will request the Board's position on the request.

Under such circumstances, if the Board finds that the claimant would be entitled to Own Motion relief if the Own Motion carrier is the party responsible for payment of compensation, the Board must notify the Division's Benefits Section within 10 days that it consents to an order designating a paying agent. OAR 438-012-0032(1); OAR 436-060-0180(3); Tanja J. McNaughton, 59 Van Natta 1625 (2007); Aaron L. Wood, 57 Van Natta 41 (2005).

If the Board is not able to make such a determination, it may require the parties to submit written statements and supporting evidence within ten days. The time for the Board's response to the Division is suspended during this process.  OAR 438-012-0032(2).

If the Board finds that the claimant would not be entitled to Own Motion relief if the Own Motion carrier is the party responsible for payment of compensation, it will issue an interim order denying consent to designation of a paying agent under ORS 656.307.  Michael D. Powell, 55 Van Natta 2775 (2003) (Board denied consent to designation of paying agent where claim would not qualify for reopening under ORS 656.278(1)(a) because "inability to work" factor not satisfied).

If a carrier is ultimately found responsible for the disputed condition under a separate "new injury" or occupational disease claim, the carrier and/or the claimant may request reconsideration of the Board's decision under OAR 438-012-0065(3).  See Steve F. Danek, 56 Van Natta 1703, 1704 n 2 (2004); Dwaine D. Doty, 54 Van Natta 880, 881 n 1 (2002); Leslie D. Marcum, 50 Van Natta 2242 (1998), recons, 51 Van Natta 862 (1999).

D.  Processing the Reopened Own Motion Claim

1.  (§38) Entitlement to Temporary Disability Benefits

An Own Motion claim may qualify for reopening, but not qualify for payment of benefits.  Duane L. Leafdahl, 54 Van Natta 1796 (2002).

Claimant has the burden to prove entitlement to temporary disability benefits. See ORS 656.266.

The same requirements for payment of temporary disability benefits apply to both "worsened condition" claims and "post-aggravation rights" new or omitted medical condition claims.  ORS 656.278(1)(a), (b); Belinda A. Butcher, 60 Van Natta 2173, 2183 (2008); Loyd E. Garoutte, 56 Van Natta 416, 423 n 12 (2004); see Mark A. Cavazos, 55 Van Natta 3004, 3011-13 (2003). 

The requirements for payment of temporary disability benefits for claims reopened under ORS 656.278(1)(a) or (1)(b) include the following.  First, the claimant must require (including a physician's recommendation for) hospitalization, inpatient or outpatient surgery, or other curative treatment (treatment that relates to or is used in the cure of diseases, tends to heal, restore to health, or to bring about recovery) prescribed in lieu of hospitalization that is necessary to enable the injured worker to return to work.  Second, temporary disability benefits are payable from the date the attending physician authorizes such benefits for the hospitalization, surgery (inpatient or outpatient), or other curative treatment prescribed in lieu of hospitalization that is necessary to enable the injured worker to return to work (which may be the date the requisite treatment is recommended).  Third, temporary disability benefits are payable under ORS 656.210, ORS 656.212(2), and ORS 656.262(4).  Rosa M. Toledo, 61 Van Natta 2375, 2376 (2009); Belinda A. Butcher, 60 Van Natta 2173, 2184 (2008); Mark A. Cavazos, 55 Van Natta 3004 (2003); see ORS 656.278(1)(a)-(b); OAR 438-012-0035(1)-(2); Judy L. Frazier, 56 Van Natta 3270, 3273, recons, 56 Van Natta 3430 (2004); David L. Hernandez, 56 Van Natta 2441, 2446 (2004); Thurman M. Mitchell, 56 Van Natta 1287, 1290 (2004).

The three qualifying medical treatments are defined as follows:  (1) "surgery" is an invasive procedure undertaken for a curative purpose that is likely to temporarily disable the worker; and (2) "hospitalization" is a nondiagnostic procedure that requires an overnight stay in a hospital or similar facility.  The third type of qualifying medical treatment has three requirements, all of which must be satisfied to meet that medical treatment category:  (1) other curative treatment (treatment that relates to or is used in the cure of diseases, tends to heal, restore to health, or to bring about recovery); (2) prescribed (directed or ordered by a doctor) in lieu of (in the place of or instead of) hospitalization; and (3) that is necessary (required or essential) to enable (render able or make possible) the injured worker to return to work.  George M. Moore, 60 Van Natta 2777, 2780 (2009); Belinda A. Butcher, 60 Van Natta 2173, 2183 (2008); Loyd E. Garoutte, 56 Van Natta 416, 423 n 12 (2004); Larry L. Little, 54 Van Natta 2536, 2542 (2002);  Mark A. Cavazos, 55 Van Natta 3004, 3011-13 (2003)

The Board cannot infer contemporaneous attending physician authorization for temporary disability based on a recommendation for surgery or surgery in and of itself.  Robert Dubray, 57 Van Natta 2279, 2281 (2005); Laura A. Heisler, 57 Van Natta 188, 191-92 (2005); Judy L. Frazier, 56 Van Natta 3270, recons, 56 Van Natta 3430 (2004).

A claimant may receive temporary disability benefits (as authorized by his or her attending physician) only for periods in which he or she was a member of the work force.  ORS 656.005(30) (defining "worker" and providing that "'worker' does not include a person who has withdrawn from the work force" during the period for which temporary disability benefits are sought); ORS 656.278(1)(a)-(b), (2)(b); Evalyn V. Stevens, 59 Van Natta 1906, 1909 (2007); Wendel P. Harrison, 58 Van Natta 2474, 2476-77 (2006); Rodney M. Waldrip, 56 Van Natta 1516, 1518-19 (2004); James J. Kemp, 54 Van Natta 491, 503, 505 (2002).

As discussed in §20, membership in the work force is determined by applying the factors in Dawkins v. Pacific Motor Trucking, 308 Or 254 (1989).  In Dawkins, the court determined that a claimant is in the work force if he or she is:  (1) engaged in regular gainful employment; or (2) not employed, but willing to work and is making reasonable efforts to obtain employment; or (3) not employed, but willing to work and is not making reasonable efforts to obtain employment because a work-related injury has made such efforts futile.  308 Or at 258; see OAR 438-012-0035(3).

Entitlement to temporary disability benefits continues until the claimant is medically stationary, unless there is a statutory basis to terminate such benefits.  See ORS 656.262(4), ORS 656.268(4)(a)-(d); ORS 656.278(1)(a)-(b); OAR 438-012-0035(5); Donald B. Huege, 55 Van Natta 1952, 1952-53 (2003); Randy L. Goddard, 55 Van Natta 874, 875-76, adhered to as modified, 55 Van Natta 1192 (2003).

The Board lacks statutory authority to suspend temporary disability under its Own Motion jurisdiction in ORS 656.278.  Jordan v. SAIF, 343 Or 208 (2007).  See §12, above.

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2.  (§39) Payment of Temporary Disability Benefits

If the claimant satisfies the requirements for entitlement to temporary disability benefits, the carrier must make the first payment of temporary disability benefits in accordance with ORS 656.210, ORS 656.212(2), and ORS 656.262(4) within 14 days from the date of the Board order reopening the claim or the date the carrier voluntarily reopened the claim.  OAR 438-012-0035(4).

When paying temporary disability benefits pursuant to a litigation order, the carrier must pay:  (1) "prospective" temporary disability (temporary disability accruing from the date of the order) no later than 14 days from the date of the order; and (2) "retroactive" temporary disability (temporary disability accruing before the date of the Board's order) no later than 14 days from the date the order that authorizes "retroactive" temporary disability becomes final; i.e., within 44 days from the date of its issuance.  OAR 436-060-0150(5)(h); Lynn E. Hilsendager, 55 Van Natta 2728 (2003); Christopher L. Camara, 50 Van Natta 355 (1998); Lee R. Parker, 48 Van Natta 2473, 2474 n 1 (1996).

Once the carrier begins paying temporary disability benefits, those benefits continue until one of the following events occurs:

(1)  The worker becomes medically stationary, unless there is a statutory basis to terminate such benefits.  See ORS 656.262(4), ORS 656.268(4)(a)-(d); ORS 656.278(1)(a)-(b); OAR 438-012-0035(5).

(2)  The claim is closed pursuant to OAR 438-012-0055.

(3)  A claim disposition agreement that does not provide for continued temporary disability compensation is submitted to the Board pursuant to ORS 656.236(1).

(4)  Benefits are terminated pursuant to ORS 656.268(4)(a) through (d).  OAR 438-012-0035(5)(d).

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E.  Closing the Claim

1.  (§40) Notice of Closure

When medical reports indicate that the worker's condition has become medically stationary, the claim is closed by the carrier.  The carrier must issue an Own Motion Notice of Closure (Form 440-2066) to the worker with copies to the worker's attorney, if any, and to the Workers' Compensation Division.  The Board does not receive a copy of the Notice of Closure.

The notice must inform the worker of the amount and duration of temporary disability compensation, the amount of any permanent disability award determined under ORS 656.278(1)(b) and (2)(d), and the medically stationary date.  The notice must also inform the injured worker of the right to Board review of the closure.  OAR 438-012-0055.

OAR 438-012-0055 requires the carrier to issue a Notice of Closure to the claimant, with a copy to his or her attorney.  Barbara J. Johnson, 55 Van Natta 1757 (2003) (carrier had notice that the claimant was represented, but did not send a copy of Notice of Closure to the claimant's attorney; Board found that the notice never became effective, set aside the invalid Notice of Closure, and remanded the claim to the carrier for processing).

CAVEAT:  If the Own Motion claim was reopened within the appeal period for challenging the benefits awarded at the most recent closure made under ORS 656.268, this reopened Own Motion claim must be closed under ORS 656.268 rather than ORS 656.278.  See ORS 656.278(3); Carter v. SAIF, 52 Or App 1027, 1031-32 (1981); Coombs v. SAIF, 39 Or App 293 (1979); Alan Kucera, 52 Van Natta 2555 (2000); Tony E. Alfano, 45 Van Natta 205 (1993). See also §5, above (discussing application of ORS 656.278(3)).

2.  (§41) Medically Stationary

"Medically stationary" means that no further material improvement would reasonably be expected from medical treatment or the passage of time.  ORS 656.005(17).  The claimant bears the burden of proving that he or she was not medically stationary at the date of closure.  Berliner v. Weyerhaeuser Corp., 54 Or App 624, 628 (1981).  The propriety of the closure turns on whether the claimant was medically stationary at the time of the Notice of Closure considering the claimant's condition at the time of closure and not subsequent developments.  Sullivan v. Argonaut Ins. Co., 73 Or App 694, 697 (1985); Alvarez v. GAB Business Services, 72 Or App 524, 527 (1985).  The issue of the claimant's medically stationary status is primarily a medical question to be decided based on competent medical evidence.  Harmon v. SAIF, 54 Or App 121, 125 (1981); Austin v. SAIF, 48 Or App 7, 12 (1980).

The term "medically stationary" does not mean that there is no longer a need for continuing medical care.  Maarefi v. SAIF, 69 Or App 527, 531 (1984).  Rather, the record must establish that there is a reasonable expectation that further or ongoing medical treatment would "materially improve" claimant's compensable condition at claim closure.  ORS 656.005(17); Victor Kigilyuk, 56 Van Natta 1429, 1431 (2004) (treating surgeon's opinion that the claimant was medically stationary persuasive; additional treatment does not mean not medically stationary); Daniel G. Kock, 56 Van Natta 81, 83 (2004) (future "palliative" treatment insufficient to establish that the claimant was not medically stationary).

The medically stationary issue is limited to those conditions that are accepted and reopened at claim closure.  Harry M. Miller, 56 Van Natta 2957, 2959 (2004) (accepted "post-aggravation rights" new medical condition that had not been "reopened" prior to claim closure not considered in determining medically stationary status; carrier remained responsible for processing that new medical condition); Kiran Prasad, 56 Van Natta 2149, 2151-52 (2004); Carolyn A. Ryan, 56 Van Natta 2035 (2004) (claim closure relates to accepted and reopened conditions; unaccepted/unreopened "post-aggravation rights" new or omitted medical condition in litigation not considered in determining medically stationary status; Rogers v. Tri-Met, 75 Or App 470 (1985) applied).

A closure is premature if all of the claimant's accepted and reopened conditions are not medically stationary on the date of claim closure.  Jerry A. Akins, 61 Van Natta 1341, 1347 (2009); Muriel E. Dexter, 55 Van Natta 4185, 4189 (2003).

A closure is not premature if the claimant refuses to undergo a recommended surgery.  Virgie Webb, 51 Van Natta 206 (1999); Karen T. Mariels, 44 Van Natta 2452, 2453 (1993); Stephen L. Gilcher, 43 Van Natta 319, 320 (1991).  However, if the claimant does not refuse to undergo a recommended surgery but rather the surgery is delayed, a claim closure is premature if made while the proposed surgery remains recommended.  Bill H. Davis, 47 Van Natta 219 (1995).

In determining medically stationary status, the Board relies on all competent medical evidence, not just evidence from the attending physician. Daniel G. Kock, 56 Van Natta 81 (2004); George Sweet, 55 Van Natta 2815, 2818 (2003).

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3.  Permanent Partial Disability

a.  (§42) Director's Standards

The Director's standards are applied to determine a claimant's permanent disability award under ORS 656.278(1)(b) for a "post-aggravation rights" new or omitted medical condition.  Edward A. Miranda, Sr., 55 Van Natta 784 (2003).  See §30, above.

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b.  (§43) ORS 656.278(2)(d) "limitation"

The limitation on permanent disability benefits under ORS 656.278(2)(d) applies where there is (1) "additional impairment" to (2) "an injured body part" that has (3) "previously been the basis of a permanent partial disability award."  Cory L. Nielsen, 55 Van Natta 3199, 3206 (2003).  The first step is to determine whether the conditions that require application of the ORS 656.278(2)(d) limitation are satisfied.  If all three requirements are satisfied, the Director's standards for rating new and omitted medical conditions related to non-Own Motion claims apply to rate "post-aggravation rights" new or omitted medical condition claims.  This requires redetermination of the claimant's permanent disability pursuant to the Director's standards before application of the ORS 656.278(2)(d) "limitation."  Camilla S. Kosmoski, 59 Van Natta 2531, 2532 (2007) (requirements for application of ORS 656.278(2)(d) "limitation" satisfied; permanent disability "redetermined" before ORS 656.278(2)(d) "limitation" applied); Jeffrey L. Heintz, 59 Van Natta 419, 422 (2007) (same); Dale M. Ackler, 56 Van Natta 2809, 2815-16 (2004) (ORS 656.278(2)(d) "limitation" applied to some new medical conditions but not others).

If all three requirements are not satisfied, the ORS 656.278(2)(d) "limitation" does not apply, and the permanent disability for the "post-aggravation rights" new or omitted medical condition is rated under the Director's standards without "redetermination" of disability.  David J. Swanson, 58 Van Natta 2297, 2300 (2006) (ORS 656.278(2)(d) "limitation" did not apply; new medical condition rated without "redetermining" disability); Terry J. Rasmussen, 56 Van Natta 1136, 1140 (2004) (same).

CAVEAT:  The ORS 656.278(2)(d) "limitation" concerns the same injury claim, whereas an "offset" (discussed in §44, below) concerns a prior award on a separate injury claim.  Jackson Hammond, 58 Van Natta 1440, 1442-43 (2006) ("offset" did not apply when there was only one injury; however, ORS 656.278(2)(d) "limitation" applied).

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c.  (§44) "Offset"

An "offset" of a prior award for a separate workers' compensation injury is applicable when rating permanent disability compensation for a "post-aggravation rights" new or omitted medical condition claim under ORS 656.278(1)(b) and ORS 656.278(2)(d), as long as the requirements for application of such an offset are satisfied.  Loyd E. Garoutte, 56 Van Natta 416, 429 (2004) (Director's standards regarding "offset" of awards for separate injury claims applied in rating "post-aggravation rights" new or omitted medical condition claims under ORS 656.278(1)(b)).

Specifically, an offset applies only if a preponderance of the medical evidence or opinion establishes that disability from the claim prior to the "post-aggravation rights" new or omitted medical condition claim was still present on the date of onset of the "post-aggravation rights" new or omitted medical condition claim being rated.  If disability from the claim prior to the "post-aggravation rights" new or omitted medical condition claim was not still present on the date of onset of the "post-aggravation rights" new or omitted medical condition claim being rated, no offset would be applied.  Craig D. Barklow, 56 Van Natta 2044, 2050-51 (2004); Rebecca L. Kyniston, 56 Van Natta 1359, 1365 (2004); Loyd E. Garoutte, 56 Van Natta 416, 432 (2004).

Both an "offset" for permanent disability awarded on another claim and the ORS 656.278(2)(d) "limitation" may apply to rate permanent disability for a "post-aggravation rights" new or omitted medical condition claim, if requirements for application of both are satisfied.  Charles F. Marshall, 58 Van Natta 2756, 2759 (2006); Loyd E. Garoutte, 56 Van Natta 416, 429 (2004).

CAVEAT:  The ORS 656.278(2)(d) "limitation" (discussed in §43, above) concerns the same injury claim, whereas an "offset" concerns a prior award on a separate injury claim.  Jackson Hammond, 58 Van Natta 1440 (2006) ("offset" did not apply when there was only one injury; however, ORS 656.278(2)(d) "limitation" applied).

Update:

4.  (§45) Permanent Total Disability

Permanent total disability benefits are available for "post-aggravation rights" new or omitted medical conditions.  ORS 656.278(1)(b); David C. Drader, 58 Van Natta 3093, 3097 (2006); James S. Daly, 58 Van Natta 2355, 2359 (2006); Sherlee M. Samel, 56 Van Natta 931, 938 (2004).

To establish permanent total disability on a "post-aggravation rights" new or omitted medical condition, the claimant must prove either that:  (1) he or she is completely physically disabled and therefore precluded from gainful employment; or (2) his or her physical impairment, combined with a number of social and vocational factors, effectively prohibits gainful employment under the "odd lot" doctrine.  Sherlee M. Samel, 56 Van Natta 931, 944 (2004); Gina Pennington, 56 Van Natta 1504, 1509-10 (2004) (Samel applied; not permanently totally disabled under either physical disability or "odd lot" doctrine).

The Board applies the following analysis in determining entitlement to permanent total disability. First, disability for a previously accepted condition is considered as it existed at the last claim closure that preceded the expiration of the claimant's five-year aggravation rights.  Second, any disability that predates the initial compensable injury is also considered.  Third, when such disabilities exist, they are considered with any disability from the "post-aggravation rights" new or omitted medical condition to determine whether claimant has established entitlement to permanent total disability.  David C. Drader, 58 Van Natta 3093, 3099 (2006); James S. Daly, 58 Van Natta 2355, 2361-65 (2006).

5.  (§46) Request for Board Review of Carrier Closure

The request for Board review must be in writing, signed by the worker or the worker's attorney, and it must include the worker's name and mailing address, a statement that Board review is requested, the reasons for requesting for review, the name of the carrier, and a copy of the Own Motion Notice of Closure (Form 440-2066).  OAR 438-012-0060(1).  See §40, above.  Reasons for requesting review may include, but are not limited to, disagreement with:  (1) the medically stationary determination; (2) the temporary disability compensation awarded, including rate of payment and dates awarded; and (3) if the claim was reopened for a "post-aggravation rights" new or omitted medical condition, the amount of, or entitlement to, permanent disability and a request for appointment of a medical arbiter.  OAR 438-012-0060(1)(b).

In the absence of good cause for a delay that does not exceed 180 days, a claimant must request Board review of an Own Motion Notice of Closure within 60 days of its mailing date.  OAR 438-012-0060(2).  The standard for determining if good cause exists has been equated to the standard of "mistake, inadvertence, surprise or excusable neglect" recognized by ORCP 71B(1) and former ORS 18. 610.  Anderson v. Publishers Paper Co., 78 Or App 513, 517 (1986); see also Brown v. EBI Companies, 289 Or 455, 457-58 (1980).  Lack of due diligence does not constitute good cause.  Cogswell v. SAIF, 74 Or App 234, 237 (1985).

Because the Worker's Compensation Division is not a "permanently staffed office of the Board," its receipt of a claimant's request for review does not constitute "filing" of the request with the Board.  Clifford W. Vorseth, 56 Van Natta 3280, 3282 (2004) (request for reconsideration sent to Division did not constitute a request for Board review; no "good cause" established for untimely request for Board review); Robert J. Kaiser II, 56 Van Natta 191, 192 (2004); Michael E. White, 55 Van Natta 4025, 4026-27 (2003).

The Board has no jurisdiction to consider a request for review filed beyond 180 days after issuance of an Own Motion claim closure.  Larry L. Wallace, 59 Van Natta 1623 (2007).

Update:

F.   Board Review of Carrier Closure

1.  (§47) Medical Arbiter Evaluation

A medical arbiter evaluation is available under three situations:  (1) when a claimant objects to the impairment findings used to rate impairment regarding "post-aggravation rights" new or omitted medical conditions and requests appointment of a medical arbiter (Edward A. Miranda, 55 Van Natta 784, 793-94 (2003)); (2) when the Board finds that insufficient medical information is available to determine permanent disability for "post-aggravation rights" new or omitted medical conditions (Michael P. Hannen, 55 Van Natta 1508, 1516-17 (2003)); and (3) when, after the claimant requests review, a carrier objects to the impairment findings used to rate impairment regarding "post-aggravation rights" new or omitted medical conditions and requests appointment of a medical arbiter (James G. Earnest, 58 Van Natta 2226, 2235 (2006)).  However, because a carrier may not request Board review of its Own Motion Notice of Closure, if the claimant does not request review of the Own Motion Notice of Closure, the Board is not authorized to review that closure and has no authority to consider a carrier's request for the appointment of a medical arbiter.  Ray W. Bluemer, 61 Van Natta 991, 996 (2009).

Under the three situations listed above where a medical arbiter is available, the Board will issue an interim order postponing its review of the Own Motion claim closure and referring the medical arbiter request to the Director for appointment of an arbiter.  Any request for a medical arbiter "panel" is a matter to be addressed by the Director.  Robert B. Freader, 55 Van Natta 3105, 3106 n 1 (2003).  Following receipt of the medical arbiter report, the Board will implement a supplemental briefing schedule and proceed with its review.

"Sufficiency of the record" is not a factor when the worker objects to the impairment findings used to rate impairment regarding "post-aggravation rights" new and/or omitted medical conditions and requests appointment of a medical arbiter.  Under such circumstances, Board will grant such a request.  Richard Wiland, 55 Van Natta 3910 (2003); see also Patrick D. Adams, 56 Van Natta 2039 (2004) (the claimant's request for medical arbiter granted, despite carrier's contention that subsequent injuries affected impairment; carrier's objection based on "apportionment" concerns can be addressed by the arbiter).

A medical arbiter evaluation is not available following closure of a "worsened condition" claim because permanent disability benefits are not available for such claims.  Von D. Bailey, 59 Van Natta 847, 849 (2007); Bradley J. French, 57 Van Natta 2442, 2445 (2005); Ginney E. Etherton, 55 Van Natta 2216, 2217-18 (2003); Arvin D. Lal, 55 Van Natta 816, 824 (2003).

A request for a medical arbiter should be raised before the Board conducts its review of the claim closure.  In Cory L. Nielsen, 55 Van Natta 3714 (2003), when a medical arbiter request was first made on reconsideration of a Board order, the Board denied the request, reasoning that prior to its decision, the claimant did not contend the record was insufficiently developed, object to impairment findings used to rate permanent disability, or request a medical arbiter.  Under such circumstances, the Board found the record sufficiently developed to rate permanent disability.

Update:

2.  (§48) Board Order Reviewing Carrier Closure

After the Board notifies the carrier that a review has been requested, the carrier has 14 days to submit legible copies of all evidence that pertains to the claimant's compensable condition at the time of closure, including any evidence relating to permanent disability.  This evidence should be marked as exhibits, arranged in chronological order, and accompanied by an exhibit list.  The carrier may also submit written arguments at this time.  The carrier must send copies of all materials to the worker and the worker's attorney, if any.  OAR 438-012-0060(3).  The worker then has 21 days to submit additional evidence and written argument.  OAR 438-012-0060(4).  No additional written argument may be submitted unless authorized by the Board.  OAR 438-012-0060(5).

The Board may refer a matter to the Hearings Division for an evidentiary hearing and recommended findings of fact and conclusions.  OAR 438-012-0060(6).  It may also refer a disagreement regarding permanent disability rating for a "post-aggravation rights" new or omitted medical condition to the Workers' Compensation Division for an evaluation and recommendation based on the record presented to the Board. OAR 438-012-0060(7).

When a claim has been reopened for a "worsened condition" under ORS 656.278(1)(a), its subsequent closure pertains only to the "worsened condition."  A later accepted "post-aggravation rights" new or omitted medical condition claim cannot be considered at claim closure unless that claim has also been reopened (either voluntarily by the carrier or by a Board order).  David E. Corliss, 59 Van Natta 2641, 2643-44 (2007); Clarence R. Wikel, 55 Van Natta 1329, 1331-32 (2003); Arvin D. Lal, 55 Van Natta 816, 823-24 (2003).  Likewise, the Board will set aside as invalid an Own Motion closure notice if the claim it purports to "close" has not been reopened (either voluntarily by the carrier or by a Board order).  Tivis E. Hay, 55 Van Natta 2239 (2003); Paul M. Rountree, 55 Van Natta 1928, 1932 (2003) (when the carrier did not voluntarily reopen "post-aggravation rights" claim and claim was not reopened by an Own Motion order, carrier's Own Motion closure notice set aside as invalid).

The carrier remains obligated to process any accepted "post-aggravation rights" new or omitted medical condition in accordance with ORS 656.278(1)(b), including the reopening and eventual closure of the claim. ORS 656.278(5); OAR 438-012-0020(1); OAR 438-012-0030; see Jerry W. Breazeale, 55 Van Natta 2051, 2057 (2003); Arvin D. Lal, 55 Van Natta 816, 822-23 (2003).  If the claimant is dissatisfied with the carrier's actions, he or she may request Board review.

Issues on Board review of claim closure may include medically stationary status/premature closure, temporary disability (including dates and rate), and permanent disability.  See §§29, 30, 38, 41, 42, 43, 44, discussing those issues.

Update:

V. ATTORNEY FEES, PENALTIES, AND PENALTY-RELATED ATTORNEY FEES

A.  (§49) "Out-of-Compensation" Attorney Fees; OAR 438-015-0080(1)-(4)

An "out-of-compensation" attorney fee (or "approved fee") is an attorney fee that is paid out of a claimant's compensation.  OAR 438-015-0005(1).  An "out of compensation" attorney fee requires approval by the Board.  ORS 656.388(1); OAR 438-015-0080; Daniel L. Grousbeck, 54 Van Natta 2531 (2002), recons, 55 Van Natta 17 (2003).

"Out-of-compensation" attorney fees are available if a worker's attorney is instrumental in obtaining increased temporary disability compensation, whether that increase results from an Own Motion Order or a carrier's voluntary reopening of the worker's Own Motion claim, provided that the retainer agreement permits an attorney fee under such circumstances.  OAR 438-015-0080(1), (2); Sharon L. Hugenberger, 57 Van Natta 89, 92-93 (2005); Michael Arnall, 55 Van Natta 3291, recons, 55 Van Natta 3852 (2003).

When all or part of the compensation resulting from the voluntary reopening for which an "out-of-compensation" attorney fee is awarded has already been paid to the claimant, the claimant's attorney must seek recovery of the attorney fee in the manner prescribed in Jane A. Volk, 46 Van Natta 681, 684-85, recons 46 Van Natta 1017 (1994), aff'd on other grounds Volk v. America West Airlines, 135 Or App 565 (1995).  See also Timothy Ledbetter, 58 Van Natta 906, 907 n 1 (2006)

An "out-of-compensation" attorney fee is payable from increased permanent disability awarded by Board order, but not from permanent disability awarded by the carrier's Own Motion Notice of Closure.  Roger D. Candler, 56 Van Natta 17 (2004); Robert B. Beckley, 55 Van Natta 4356, 4361-62 (2003).

B.  (§50) "Assessed" Attorney Fees

An "assessed fee" is an attorney fee paid to a claimant's attorney by the carrier in addition to compensation paid to a claimant.  OAR 438-015-0005(2).  An "assessed" attorney fee requires approval by the Board.  ORS 656.388(1)

An assessed attorney fee is available under ORS 656.382(2) when a claimant prevails over a carrier's request for reconsideration of a Board's Own Motion Order.  In Antonio L. Martinez, 61 Van Natta 1892, 1903 (2009), the Board determined that the phrase "request for review," as used in ORS 656.382(2), encompasses a broader range of "review" than merely a review "of an ALJ's [Administrative Law Judge's] order," and includes a carrier's request for review of its own orders.  Therefore, in Martinez, 61 Van Natta at 1903, the Board disavowed any contrary holding in Leroy J. Moser, 61 Van Natta 296, 303 (2009); Efren Quintero, 50 Van Natta 86, 87-88 (1998); Donald E. Woodman, 44 Van Natta 2429 (1992), recons, 45 Van Natta 4 (1993).  Accordingly, based on the reasoning in Martinez, an assessed attorney fee is available under ORS 656.382(2) when a claimant prevails over a carrier's request for reconsideration of a Board's Own Motion Order.  Raul Duggins, 61 Van Natta 2153, 2155 (2009).

C.  (§51) Penalties and Penalty-Related Attorney Fees

A penalty may be assessed when a carrier "unreasonably delays or unreasonably refuses to pay compensation."  ORS 656.262(11)(a).  The standard for determining unreasonable resistance to payment of compensation is whether, from a legal standpoint, the carrier had a legitimate doubt about its liability. International Paper Co. v. Huntley, 106 Or App 107, 110 (1991).  "Whether an insurer has a legitimate doubt concerning its processing obligations under the Workers' Compensation Law must be based on that insurer's knowledge at the time it acts."  Liberty Northwest Ins. Corp. v. Hughes, 197 Or App 553, 558 (2005).

When the Board has found that a carrier unreasonably delayed or unreasonably refused payment of compensation under relevant Own Motion law, it has assessed penalties under ORS 656.262(11)(a).  See Ronald E. Sullivan, 61 Van Natta 108, 113-14 (2009) (penalty and penalty-related attorney fee awarded under ORS 656.262(11)(a) for carrier's unreasonable failure to process accepted "post-aggravation rights" new medical condition claim, which resulted in unreasonably delayed or unreasonably refusal to pay compensation); Sandra J. Andrews, 60 Van Natta 2361, 2366-67 (2008) (penalty and penalty-related attorney fee awarded under ORS 656.262(11)(a) for carrier's unreasonable refusal to pay temporary disability benefits on reopened "post-aggravation rights" new medical condition claim); Howard D. Smith, 57 Van Natta 1817, 1827-30 (2005) (penalty and penalty-related attorney fee awarded under ORS 656.262(11)(a) when insurer had no legitimate doubt about liability and had issued an Own Motion "clarification," stating that it had previously accepted new or omitted medical conditions that it had not accepted); David J. Swanson, 57 Van Natta 885, 887 (2005); Richard L. Wilson, 56 Van Natta 407, 412-13, recons, 56 Van Natta 1614 (2004).

In Vernon W. Miller, 59 Van Natta 1647, recons, 59 Van Natta 2142 (2007), the Board did not assess a penalty for the untimely payment of temporary disability compensation granted by an Own Motion Notice of Closure because, until the Miller decision issued, there was no precedent establishing when such payment was due.  Therefore, the carrier had a legitimate doubt regarding the timely payment of that compensation.

When a claim is in Own Motion status, claim closure is governed by ORS 656.278, rather than ORS 656.268.  Therefore, penalties under ORS 656.268(5)(d) are not available for any allegedly unreasonable claim processing of claimant's Own Motion claim.  Ronald E. Sullivan, 61 Van Natta 108, 112 (2009); Billy J. Arms, 59 Van Natta 2927, 2928 (2007); John S. Ross, 57 Van Natta 1510, 1516 (2005).  Nonetheless, as addressed above, ORS 656.262(11)(a) provides for a penalty if a carrier unreasonably delays or unreasonably refuses to pay compensation.

Update:

VI. RECONSIDERATION AND APPEAL

A.  (§52) Reconsideration

A motion for reconsideration of an Own Motion Order must be filed within 30 days after the mailing date of the order, or within 60 days after the mailing date if the party requesting reconsideration establishes good cause for the failure to file the request within the 30-day deadline.  OAR 438-012-0065(2); Gladys Biggs, 54 Van Natta 1094, 1094-98 (2002).

The test for determining if good cause exists has been equated to the standard of "mistake, inadvertence, surprise or excusable neglect" recognized under ORCP 71B(1) and former ORS 18.160. Anderson v. Publishers Paper Co., 78 Or App 513, 517 (1986); see also Brown v. EBI Companies, 289 Or 455, 457-58 (1980); John B. Riley, 54 Van Natta 1256, 1259 (2002) ("good cause" for untimely filing not shown).  Lack of due diligence does not constitute good cause.  Cogswell v. SAIF, 74 Or App 234, 237 (1985).

In extraordinary circumstances, the Board may, on its own motion, reconsider any prior Board order.  OAR 438-012-0065(3). See e. g., Jay A. Yowell, 42 Van Natta 1120 (1990) (because the insurer failed to promptly forward the claimant's misdirected request for reconsideration to the Board, the Board concluded that "extraordinary circumstances" prevented the claimant's timely filing of the request); compare, Larry P. Karr, 48 Van Natta 2182 (1996) (neither "good cause" nor "extraordinary circumstances" satisfied; untimely motion for reconsideration denied).

Update:

B.  Appeal

1.  (§53) Perfecting the Appeal

Parties challenging an Own Motion order must file petitions for review with the Court of Appeals within 30 days of the order's filing date, and follow the same format, service, filing, and mailing rules as with petitions for review of Board orders on review.  ORS 656.278(4), ORS 656.295(8), ORS 656.298(1)-(3).

2.  Limitations on Appeal

a.  (§54) Procedural Limits

Generally, no Board order (including Own Motion orders) may be appealed unless it constitutes a "final order" sufficient to vest the appellate court with jurisdiction.  ORS 183.480(3).  To constitute a final order, a Board decision must finally determine at least one aspect of the claim such that no further action is necessary to dispose of it.  Price v. SAIF, 296 Or 311, 315 (1984).  Accordingly, a Board order that does nothing more than remand an Own Motion request to an Administrative Law Judge for an evidentiary hearing, or abate a prior order pending reconsideration, will not support a petition for judicial review.

b.  (§55) No Substantive Limits

Effective January 1, 2006, the legislature eliminated the prior substantive limits on appeals of Own Motion orders.  2005 Or Laws ch. 188, §§2, 4.  Pursuant to ORS 656.298, any party may appeal an order or award made by the Board on its own motion.  ORS 656.278(4).

Own Motion Digest - Updated 1/14/10
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