71 Van Natta 775 (2019)
In the Matter of the Compensation of DEVYNNE C. KROSSMAN, Claimant
WCB No. 17-03354
Oregon Worker Compensation
July 12, 2019
Ronald
A Fontana, Claimant Attorneys
Cummins Goodman et al, Defense Attorneys
Reviewing Panel: Members Curey and Ousey.
ORDER ON RECONSIDERATION
On
March 12, 2019, we abated our previous order that awarded a
penalty for the self-insured employer’s allegedly
unreasonable denial of claimant’s new/omitted medical
condition claim for Raynaud’s Syndrome. We took this
action to consider the employer’s motion for
reconsideration, asserting that the record lacks evidence of
any “amounts then due” on which to base a penalty
under ORS 656.262(11)(a). In response, claimant contends that
an ORS 656.262(11)(a) penalty was appropriately awarded.
Claimant also seeks reconsideration of those portions of our
order that declined to award an ORS 656.386(1) attorney fee
and impose sanctions under ORS 656.390.[1] Having considered the
parties’ supplemental arguments, we proceed with our
reconsideration.
[71 Van
Natta 776] In our previous order, we concluded that the
employer’s ongoing denial was unreasonable in light of
the changed opinions from Drs. Button, Nolan, and Bell. Thus,
we found that claimant was entitled to a penalty under ORS
656.262(11)(a).
On
reconsideration, the employer asserts that the ORS
656.262(11)(a) penalty is not awardable because the record
does not establish any “amounts then due.”
Claimant responds that, based on Walker v. Providence
Health Sys. Oregon, 267 Or.App. 87 (2014), such a
penalty is awardable in the absence of evidence of
“amounts then due.” After further consideration,
we conclude that, based on this particular record, an ORS
656.262(11)(a) penalty cannot be assessed. We reason as
follows.
ORS
656.262(11)(a) provides for a penalty up to 25 percent of any
“amounts then due” if the carrier unreasonably
refuses to pay compensation or unreasonably delays the
acceptance or denial of a claim. As the proponent of the
penalty issue, claimant bears the burden of...
