73 Van Natta 210 (2021)
In the Matter of the Compensation of STEPHANIE A. SHERMAN, Claimant
WCB Nos. 19-02968
Oregon Worker Compensation
March 11, 2021
Julene
M Quinn LLC, Claimant Attorneys.
Sather
Byerly Holloway - SBH Legal, Defense Attorneys.
Reviewing Panel: Members Curey and Ousey.
ORDER
ON REVIEW
Claimant
requests review of Administrative Law Judge (ALJ) Martha
Brown’s order that: (1) affirmed an Order Denying
Request for Reconsideration of a Notice of Closure; and (2)
declined to award penalties and attorney fees for allegedly
unreasonable claim processing. On review, the issues are
timeliness, penalties, and attorney fees.[1]
We
adopt and affirm the ALJ’s order with the following
supplementation.
On
November 29, 2018, a Notice of Closure awarded temporary
disability, but no permanent disability, benefits for
claimant’s right patella fracture condition claim.
(Exs. 5, 6-1). The Notice of Closure provided that the
self-insured employer mailed copies of the notice to claimant
(by certified mail) and to her attorney. (Ex. 6-1). In
addition, the employer’s internal noting system
recorded that the Notice of Closure was mailed to claimant
and her attorney, postmarked on November 29, 2018. (Ex. 7).
On
December 3, 2018, the United States Postal Service (USPS)
left a notice for claimant at her address because an
authorized recipient was not available to accept the
certified mailing (containing the Notice of Closure). (Ex.
8-2). The Notice of Closure was returned to the employer on
December 20, 2018, because claimant did not collect it at the
post office. (Ex. 8-1-2).
On
April 11, 2019, claimant, through her attorney, requested
reconsideration of the Notice of Closure. (Ex. 9). In May
2019, the Appellate Review Unit (ARU) denied reconsideration,
finding that claimant’s reconsideration request was
untimely because it was mailed more than 60 days after the
Notice of Closure’s mailing date. (Ex. 11).
[73 Van
Natta 211] Later that month, claimant requested
reconsideration of the ARU’s order. (Ex. 12-1). As part
of her request, claimant submitted a declaration from Mr.
White (her attorney’s paralegal), who stated that
claimant’s counsel’s office did not receive the
Notice of Closure until February 11, 2019 (in a discovery
packet from the employer, dated February 7,
2019).2 (Ex. 13). The ARU declined to reconsider
its order denying reconsideration because claimant had not
submitted Mr. White’s declaration before the order was
issued. (Ex. 14). Claimant requested a hearing. (Hearing
Record).
The ALJ
found that the record persuasively established that the
employer mailed the Notice of Closure to claimant and her
attorney on November 29, 2018. The ALJ concluded that
claimant’s reconsideration request was untimely...
