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...