In re Compensation of Joy, 092421 ORWC, 20-03094

Case DateSeptember 24, 2021
CourtOregon
73 Van Natta 712 (2021)
In the Matter of the Compensation of TIMOTHY JOY, Claimant
WCB No. 20-03094
Oregon Worker Compensation
September 24, 2021
          Jodie Phillips Polich, Claimant Attorneys           Law Offices of Kathryn R Morton, Defense Attorneys           Reviewing Panel: Members Woodford and Ousey.          ORDER ON REVIEW          Claimant requests review of Administrative Law Judge (ALJ) Fulsher’s order that: (1) concluded that the Hearings Division did not have jurisdiction; and (2) declined to award penalties and penalty-related attorney fees for the self-insured employer’s allegedly unreasonable refusal to close claimant’s occupational disease claim. On review, the issues are jurisdiction and (potentially) penalties and attorney fees.          We adopt and affirm the ALJ’s order with the following supplementation.1          Claimant’s disabling claim was closed on March 17, 2014. (Exs. 13, 14, 17). His aggravation rights expired on March 17, 2019. (Exs. 14-3, 17).          The ALJ determined that the employer had not reopened claimant’s claim prior to the expiration of his aggravation rights on March 17, 2019. Moreover, noting that claimant’s June 25, 2019, cochlear implant surgery and his subsequent requests for claim closure occurred after the expiration of his aggravation rights, the ALJ found that “if the claim was reopened” it was within the Board’s Own Motion jurisdiction. Under such circumstances, the ALJ concluded that the Hearings Division lacked jurisdiction over the alleged processing matters and declined to award penalties and penalty-related attorney fees.          On review, claimant does not contest the ALJ’s finding that his aggravation rights expired on March 17, 2019. Further, claimant acknowledges that his belief that his claim had been reopened before the expiration of his aggravation rights was “incorrect.” Nonetheless, he contends that the employer had an obligation to respond to his requests for claim closure of his closed claim, and that the [73 Van Natta 713] Hearings Division and the Board on review have jurisdiction to impose a penalty and...

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