Double Tree Hotel v. Ansarinezhad

51

Argued and submitted September 28, 2020, affirmed December 1, 2021

In the Matter of the Compensation of

Azam Ansarinezhad, Claimant.

DOUBLE TREE HOTEL/

Aimbridge Hospitality,

Petitioners,

v.

Azam ANSARINEZHAD,

Respondent.

Workers’ Compensation Board

1702232; A172330

504 P3d 41

Employer petitions for judicial review of a final order of the Workers’

Compensation Board (the board) that affirmed an administrative law judge’s

(ALJ) order to set aside employer’s denial of claimant’s injury claim. Employer

denied the claim on the ground that claimant had failed to give timely notice

under ORS 656.256. The issue on review is the intended meaning of the phrase

“notice required by this section” in ORS 656.265(4), and whether it refers to notice

of an accident or to notice of a claim. Held: The plain and unambiguous text of the

statute, in its context, provided that the phrase “notice required by this section”

referred to notice of an accident, which claimant timely provided. Accordingly,

the board did not err in affirming the ALJ’s order to set aside employer’s denial.

Affirmed.

Katherine M. Caldwell argued the cause for petitioners.

Also on the briefs was Babcock Holloway Caldwell & Stires.

Spencer D. Kelly argued the cause for respondent. Also

on the brief was Welch, Bruun & Green.

Before Lagesen, Presiding Judge, and James, Judge, and

Kamins, Judge.

JAMES, J.

Affirmed.

52 Double Tree Hotel v. Ansarinezhad

JAMES, J.

Employer petitions for judicial review of a final

order of the Workers’ Compensation Board that affirmed an

administrative law judge’s (ALJ) order to set aside employer’s

denial of claimant’s injury claim. Employer had denied the

claim on the ground that claimant had failed to give timely

notice under ORS 656.256. The issue on judicial review is

the meaning of the phrase “notice required by this section”

in ORS 656.265(4), and whether it refers to notice of an

accident or to notice of a claim. We agree with the board’s

conclusion that the phrase refers to notice of an accident,

which claimant timely provided, and we therefore affirm the

board’s order setting aside the denial.

The relevant facts are not in dispute. Claimant

worked as a housekeeper for the employer. Sometime in

January 2016, claimant injured her left shoulder at work.

After about a week, she orally informed the employer of her

injury. Another worker was assigned to assist claimant with

her job duties, but no paperwork was filled out at that time

for a workers’ compensation claim.1 Claimant commenced

a course of medical treatment and eventually underwent

surgery in 2017. On March 9, 2017, claimant filed a written

claim for compensation. The employer denied the claim on

the basis of untimely notice under ORS 656.265(4).

Claimant requested a hearing. Before the ALJ,

claimant and employer offered different interpretations of

ORS 656.265. Claimant contended that she had given timely

notice of her injury to the employer within 90 days after

the work incident pursuant to ORS 656.265(1). In response,

employer argued that although claimant provided notice of

the accident, claimant’s claim was untimely because she

failed to submit a formal notice of a claim within one year of

her injury, as required by ORS 656.265(4). The ALJ rejected

employer’s timeliness defense and set aside the denial, hold-

ing that ORS 656.265(4) does not add the requirement that

claimant must provide notice of a claim within one year of

an injury. Employer appealed to the board, which adopted

1

Claimant informed her treating physician that she did not want to file a

claim due to her concerns of losing the job.

Cite as 316 Or App 51 (2021) 53

and affirmed the ALJ’s order to set aside employer’s denial.

Employer now seeks judicial review of the board’s final order.

We review the board’s legal conclusions for legal

error, and its determinations on factual issues for sub-

stantial evidence, which includes substantial reason. ORS

183.482(8)(a), (c); SAIF v. Camarena, 264 Or App 400, 404,

332 P3d 341 (2014). “Substantial evidence supports a find-

ing when the record, viewed as a whole, permits a reason-

able person to make that finding.” Camarena, 264 Or App

at 404. (Internal quotation marks omitted.) We review the

board’s interpretation of a statute for legal error. See State v.

Spainhower, 251 Or App 25, 27, 283 P3d 361 (2012) (stating

standard of review for questions of statutory interpretation).

On judicial review, employer renews its contention

that claimant’s claim for compensation was untimely filed

and therefore, should be barred by ORS 656.265.2 The par-

ties’ dispute boils down to a question of statutory interpre-

tation, focusing on the meaning of “notice as required by

this section” in ORS 656.265(4). Employer contends that

the “notice” in subsection (4) refers to notice of a claim, not

notice of an accident. According to the employer, subsection

(4) contemplates a one-year time limit for giving notice of

a claim independent of the period for providing notice of

an accident resulting in an injury under ORS 656.265(1).

To determine the intended meaning of a statute, we use

the analytic framework set forth in State v. Gaines, which

requires us to look to the text of the statute in its context

along with helpful legislative history. 346 Or 160, 171-72,

206 P3d 1042 (2009).

ORS 656.265 provides, in relevant part:

“(1)(a) Notice of an accident resulting in an injury or

death shall be given immediately by the worker or a bene-

ficiary of the worker to the employer, but not later than 90

days after the accident. The employer shall acknowledge

forthwith receipt of such notice. * * *

“(2) The notice need not be in any particular form * * *.

2

It is undisputed that a worker’s oral notice is sufficient under ORS

656.265(1). Godfrey v. Fred Meyer Stores, 202 Or App 673, 124 P3d 621 (2005),

rev den, 340 Or 672 (2006).

54 Double Tree Hotel v. Ansarinezhad

“(3) Notice shall be given to the employer by mail,

addressed to the employer at the last-known place of busi-

ness of the employer * * *.

“(4) Failure to give notice as required by this section

bars a claim under this chapter unless the notice is given

within one year after the date of the accident * * *.”

The statutory language is clear that the notice to

which ORS 656.265(4) refers is of an accident and not a claim.

The text of ORS 656.265(4) provides that a claim is barred

if “notice as required by this section [i.e., ORS 656.265(1), (2)

and (3)]” is not given, unless one of the exceptions is appli-

cable. Textually, ORS 656.265(1) explicitly states that the

notice a worker is required to give is “notice of an accident

resulting in an injury or death.” The requirements for the

methods and delivery of such notice are provided in ORS

656.265(2) and (3). Subsection (2) provides, in relevant part,

that “[t]he notice need not be in any particular form.” The

use of the definite article suggests that “the notice” refers

to “the notice of an accident” mentioned in the immedi-

ately preceding subsection. Vsetecka v. Safeway Stores, Inc.,

337 Or 502, 508, 98 P3d 1116 (2004) (discussing that ORS

656.265(2) addresses the form and contents of notice of an

accident that results in an injury or death required by ORS

656.265(1)). Subsection (3) provides that “[n]otice shall be

given to the employer by mail, addressed to the employer

* * *.” Although the definite article is not used, it follows log-

ically that “notice” refers to the same notice that is men-

tioned in subsections (1) and (2) as subsection (3) further

specifies to whom an injured worker must give notice of an

accident for the purpose of satisfying the notice requirement

under ORS 656.265.

Employer contends that the “notice” and the one-

year limitation period in subsection (4) refer to the notice

of the filing of a claim rather than an accident, relying pri-

marily on the legislative history of 1995 amendments to

ORS 656.265. We have reviewed the legislative history of

the statute and found pieces both supporting and undercut-

ting employer’s interpretation. However, “[e]ven assuming

that the legislative history supported claimant’s interpreta-

tion, we are required not to construe a statute in a way that

is inconsistent with its plain text.” Suchi v. SAIF, 238 Or

Cite as 316 Or App 51 (2021) 55

App 48, 55, 241 P3d 1174 (2010), rev den, 350 Or 231 (2011);

see also Gaines, 346 Or at 173 (“When the text of a stat-

ute is truly capable of having only one meaning, no weight

can be given to legislative history that suggests—or even

confirms—that legislators intended something different.”).

The plain and unambiguous text of the statute

shows that the only plausible reading of the phrase “notice

as required by this section” under subsection (4) is that such

notice refers to the “notice of an accident” described in the

preceding subsections (1), (2), and (3). Accordingly, the board

did not err in holding that ORS 656.265(4) does not bar a

claim filed by a claimant over a year after the date of injury,

if the claimant has given timely notice of the accident pursu-

ant to the other provisions of ORS 656.265. Here, employer

conceded that it had timely notice of an accident result-

ing in an injury from claimant under ORS 656.265(1)(a).

Therefore, the board did not err in setting aside employer’s

denial on the basis that claimant provided timely notice to

the employer under ORS 656.265.

Affirmed.