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Norstadt v. Liberty Northwest Insurance Corp.2/27/2002
Reversed and remanded.
Claimant seeks judicial review of an order of the Workers' Compensation Board Board denying his request for reclassification due to lack of jurisdiction. Claimant assigns as error the Board's use of the "date of injury" of ORS 656.277(1) (1995) rather than the "date of acceptance" found in ORS 656.277(1) (1999) in determining whether his request was timely. We reverse and remand.
Claimant worked for many years and for many employers in the wood products industry. In 1993, he became aware that his bilateral hearing loss was work-related and filed workers' compensation claims against some of his past employers. The Board declared claimant's hearing loss compensable but found none of the employers joined in the proceedings were responsible. On judicial review, this court reversed, concluding that, under ORS 656.308(2) (1990), insurers that do not properly disclaim responsibility are precluded from asserting lack of responsibility as a defense. Norstadt v. Murphy Plywood, 148 Or App 484, 941 P2d 1030, on recons 150 Or App 245, 945 P2d 654 (1997) (rev den 327 Or 432 (1998). On remand, the Board assigned responsibility for the claim to Liberty Northwest Insurance Corporation (Liberty). On May 12, 1999, Liberty issued a Notice of Acceptance of the hearing loss claim, classifying it as "nondisabling."
On May 27, 1999, claimant wrote to the Department of Consumer and Business Services (Department) requesting correction of the classification to disabling. The Department treated the letter as a request for reclassification and denied it for lack of jurisdiction because the request had not been made within one year from the date of injury as required by ORS 656.277(1) (1995), which was then in effect. Claimant appealed this determination by requesting a hearing, but then withdrew the request, and his appeal was dismissed "without prejudice."
In the meantime, the 1999 legislature amended ORS 656.277(1). The amended statute, which became effective on October 23, 1999, provided, in pertinent part:
"A request for reclassification by the worker of an accepted nondisabling injury that the worker believes was or has become disabling must be submitted to the insurer or self-insured employer. The insurer or self-insured employer shall classify the claim as disabling or nondisabling within 14 days of the request if the request is received within one year after the date of acceptance."
Three days after the 1999 amendments became law, claimant submitted a request for reclassification to Liberty. Liberty denied the request, and claimant sought review by the Department. The Department order continued the claim as nondisabling and claimant requested a hearing. On review, the Board concluded that claimant's request for reclassification was governed by the "date of injury," test of ORS 656.277(1) (1995), and under that test claimant's rights had expired. Claimant then sought judicial review.
In determining which version of the statute applies to claimant's request, we are governed by legislative intent. We seek that intent first by looking to the text and context of the statute. PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993). We find nothing in the text or context indicating that the procedure and the time limit specified in the 1999 legislation should not apply to requests made under that procedure. Once the amendments became law, there was no other procedure for claimant to use. Due to the intervening litigation, claimant never had an opportunity to seek reclassification. By the time that litigation was resolved, the period for requesting reclassification under the old law had expired. See Alcantar-Baca
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