71 Van Natta 1196 (2019)
In the Matter of the Compensation of HILDA B. BECERRA-GOMEZ, Claimant
WCB No. 18-03041
Oregon Worker Compensation
October 18, 2019
Hooton
& Chen LLP, Claimant Attorneys
SAIF
Legal Salem, Defense Attorneys
Reviewing Panel: Members Lanning and Curey.
ORDER ON REVIEW
Claimant
requests review of Administrative Law Judge (ALJ)
Bethlahmy's order that: (1) found that claimant's
injury claim for a low back/right hip condition was untimely
filed under ORS 656.265; and (2) upheld the SAIF
Corporation's denial of the claim. On review, the issue
is timely claim filing. We affirm.
FINDINGS
OF FACT
We
adopt the ALJ's "Findings of Fact" with the
following summary and supplementation.
Claimant
worked as a seasonal field laborer for the employer, a farm
and winery. (Tr. 9, 34, 38-39).
On
September 20, 2017, while harvesting grapes, claimant slipped
and fell on her buttocks. (Exs. a-1, 2-1; Tr. 9-10). Claimant
testified that she told Mr. Sanchez, her crew boss, that she
fell that day. (Tr. 15, 49). She worked the rest of the day.
(Tr. 11).
Claimant
testified that on September 22, 2017, she told Mr. Garza, the
field manager, that she fell and that her foot was hurting.
(Tr. 11-13, 47). She stated that the conversation took place
in Mr. Garza's office when she and her son came to pick
up their pay checks. (Tr. 11-12). Claimant testified that Mr.
Garza told her that she should take care of her foot because
she could get arthritis.1 (Tr. 73).
[71 Van
Natta 1197] Mr. Garza testified that he never had a
conversation with claimant in September 2017 (or any other
time prior to March 2018) about a work injury. (Tr. 52-54,
57). He testified that he never told claimant that she should
get her foot checked out because she could get arthritis.
(Tr. 57).
Claimant
did not follow-up with Mr. Garza about her injury. (Tr. 80).
She did not seek medical treatment until October 26, 2017,
and continued her normal work duties through the end of the
season (November 2017). (Ex. 9; Tr. 14, 21-23, 41, 54).
Claimant’s
son testified that he was with claimant when she told Mr.
Garza about her work injury. (Tr. 26-27). He initially stated
that the conversation took place outside when Mr. Garza was
handing out pay checks from his truck. (Tr. 29).
Claimant’s son subsequently testified that the
conversation took place in Mr. Garza’s office and that
the pay checks were on his office table. (Tr. 30-31).
Finally, claimant’s son stated that there were two
conversations: one outside by Mr. Garza’s truck about a
manager who was behaving inappropriately, and one in Mr.
Garza’s office about claimant’s work injury. (Tr.
32-33).
Following
her son’s testimony, claimant testified that she had
two conversations with Mr. Garza on September 22, 2017: one
in his office about her work injury, and another by his
truck. (Tr. 75, 78-79). Claimant initially stated that these
conversations occurred on the same day, but later testified
that the second conversation was on a different day, about a
different subject. (Tr. 75-76, 79).
Mr.
Garza testified that the first time he learned about
claimant’s work injury was when she mentioned it during
a March 2018 meeting regarding harassment. (Tr. 50-52, 55).
He stated that claimant, Ms. Mayo (the director of human
resources), and the employer’s in-house counsel, were
present at the March 2018 meeting. (Id.)
[71 Van
Natta 1198] Mr. Garza testified that he saw claimant six to
eight times after September 2017 and that she never said
anything about a work injury. (Tr. 54). He had...
