The opinion
38
Argued and submitted October 14, 2021, affirmed March 2, 2022
In the Matter of the Compensation of
Toni M. Dover, Claimant.
SEDGWICK CMS, INC.
and Workers’ Compensation
Division of the Department of
Consumer and Business Services,
Petitioners,
v.
Toni M. DOVER,
Respondent.
Workers’ Compensation Board
1900007TP; A174431
507 P3d 793
The Workers’ Compensation Division of the Department of Consumer and
Business Services (WCD) and Sedgwick Claim Management Services (Sedgwick)
petition for judicial review of a third-party order of the Workers’ Compensation
Board holding that they are not “paying agencies” under ORS 656.576 entitled
to seek a share of claimant’s settlement proceeds from a third-party tortfeasor.
Held: Because, as a result of a disputed claim settlement, claimant’s claim had
been denied as of the time of claimant’s settlement with the third-party tortfea-
sor, the board did not err in concluding that WCD and Sedgwick were not paying
agencies entitled under ORS 656.576 to share in the settlement proceeds.
Affirmed.
David P. Levine argued the cause and filed the briefs for
petitioner Sedgwick CMS, Inc. Also on the opening brief was
Law Office of David P. Levine LLC. Also on the reply brief
were Rebecca A. Watkins and SBH Legal.
Robert M. Wilsey, Assistant Attorney General, argued
the cause and filed the opening brief for petitioner Workers’
Compensation Division Of the Department of Consumer
and Business Services. Also on the opening brief were
Ellen F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General. On the reply brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Jordan R. Silk, Assistant Attorney General.
Cite as 318 Or App 38 (2022) 39
Randy M. Elmer argued the cause and filed the brief for
respondent.
Theodore P. Heus and Quinn & Heus, LLC, filed the brief
amicus curiae for The Oregon Trial Lawyers Association.
Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Armstrong, Senior Judge.
TOOKEY, P. J.
Affirmed.
40 Sedgwick CMS, Inc. v. Dover
TOOKEY, P. J.
This case involves petitions for judicial review of
a third-party order of the Workers’ Compensation Board
by the Workers’ Compensation Division (the division) of
the Department of Consumer and Business Services (the
department) and Sedgwick Claim Management Services
(Sedgwick).
INTRODUCTION
Claimant, who sought and received benefits on a
workers’ compensation claim, settled a separate civil action
against a third-party tortfeasor for her injuries. Claimant
filed a petition with the board, seeking a third-party order
determining that Sedgwick, the assigned claims agent that
had paid benefits on the claim, and the division, which had
reimbursed Sedgwick from the Workers’ Benefit Fund, are
not “paying agencies” as defined in ORS 656.576, entitled
to be reimbursed from the settlement proceeds. In a third-
party order, the board agreed with claimant that Sedgwick
and the division are not “paying agencies.”1
Sedgwick and the division challenge the board’s
determination. The narrow issue presented on judicial
review is whether Sedgwick and the division are “paying
agencies” as defined in ORS 656.576, entitled to be reim-
bursed for workers’ compensation benefits Sedgwick paid
to claimant while Sedgwick was the assigned claims agent.
The facts are undisputed, and the issue is one of law that
we review for errors of law. ORS 183.482(8)(a). As explained
below, we agree with the board that Sedgwick and the divi-
sion are not paying agencies entitled to seek reimbursement
from the settlement proceeds. We therefore affirm.
FACTS
We take our summary of the facts, which have a
few procedural twists, from the board’s order. Claimant
was injured in a car accident and filed a workers’ compen-
sation claim with her employer, who, after investigation,
was determined to be “noncomplying,” i.e., not in compliance
1
ORS 656.576 defines a “paying agency” as “the self-insured employer or
insurer paying benefits to the worker or beneficiaries.”
Cite as 318 Or App 38 (2022) 41
with the workers’ compensation laws. The division assigned
the claim for processing to Sedgwick, the state’s processing
agent for workers’ compensation claims against noncom-
plying employers. See ORS 656.054 (requiring the director
of the department to refer a claim against a noncomplying
employer to an “assigned claims agent” for processing). As
the assigned claims agent, Sedgwick was required to pro-
cess claimant’s claim “in the same manner as a claim made
by a worker employed by a carrier-insured employer.” ORS
656.054(1). Sedgwick accepted the claim and began pay-
ing claimant benefits. The division reimbursed Sedgwick
from the Workers’ Benefit Fund. See ORS 656.605 (creating
Workers’ Benefit Fund and describing uses of fund).
As statutorily permitted, ORS 656.054(1), the
employer challenged the determination of noncompliance,
the compensability of the claim, and Sedgwick’s acceptance.
Claimant sought benefits for a new or omitted medical condi-
tion, which Sedgwick denied. Claimant requested a hearing
on the denial. The matters were consolidated and referred
to mediation, and, ultimately, in May 2018, claimant, the
employer, Sedgwick, and the division reached a disputed
claim settlement (DCS). ORS 656.289(4).2
The DCS upheld the division’s determination that
the employer was noncomplying. In the DCS, the parties
agreed that the employer’s denial of the claim would be
upheld and that Sedgwick’s acceptance would be set aside.
2
ORS 656.289(4) provides that “in any case where there is a bona fide dis-
pute over compensability of a claim, the parties may, with the approval of an
Administrative Law Judge, the board or the court, by agreement make such dis-
position of the claim as is considered reasonable.”
The parties’ DCS stated that it settled “all issues raised or raisable.” The
parties agreed that: (1) there is a bona fide dispute as to the compensability of
claimant’s conditions, including the newly claimed conditions and the previously
accepted low back strain; (2) claimant would be paid $14,900 in “lieu of any and
all compensation” for the denied conditions; (3) should the ALJ accept the set-
tlement, Sedgwick’s acceptance and partial denial would be set aside and the
employer’s denial of the claimed conditions would be upheld; (4) claimant would
withdraw her request for hearing; (5) if claimant challenged the DCS, she would
be required to return the proceeds of the DCS and the case would return to the
status quo ante; and (6) division and Sedgwick remained entitled to all liens
resulting from the payment of benefits to claimant. Under the DCS, the employer
agreed to reimburse the department for the settlement proceeds, “together with
all appropriate claim costs, administrative charges, and attorney fees incurred
by Sedgwick in processing the claim and settlement[.]”
42 Sedgwick CMS, Inc. v. Dover
Claimant would be paid $14,900 in “lieu of any and all com-
pensation” for the denied conditions. As noted, Sedgwick,
which had accepted the claim, had paid claimant benefits
up to time of the signing of the DCS, and the division had
reimbursed Sedgwick from the Workers’ Benefit Fund. In
the DCS, the employer agreed to reimburse the division for
amounts it had reimbursed Sedgwick. The DCS stated that
the division and Sedgwick remained entitled to all liens
resulting from the payment of benefits to claimant.3 The
DCS concluded with the statement that “nothing in this
document affects or impairs any rights or remedies of the
[department/division], [Sedgwick], or the employer, specifi-
cally those arising under ORS 656.576 to 656.595, except as
expressly stated in this agreement.” An administrative law
judge approved the DCS, and it became final.
Over a year later, in November 2019, claimant
sought to settle a separate civil action for her injuries that
she had brought against a third-party tortfeasor. She filed
a petition for a third-party order determining that, despite
the DCS’s reservation of “statutory rights,” Sedgwick had
no statutory right to share in the settlement proceeds.
Sedgwick asserted that, as an assigned claims agent that
had accepted the claim and paid benefits, it was entitled
to enforce a lien on the settlement proceeds for benefits
paid to claimant in processing the claim. The division sim-
ilarly sought to be compensated for amounts it had reim-
bursed Sedgwick. See ORS 656.593(4) (defining division
as a “paying agency” for amounts paid to another pay-
ing agency). Claimant objected, asserting that Sedgwick
was not a paying agency, as the term is defined in ORS
656.576.
3
The DCS provided that division and Sedgwick
“remain entitled to all liens against any recovery made now or in the future
against the non-complying employer or a third party alleged at fault for dam-
ages from this injury/claim, and for all sums appropriately paid by [the divi-
sion/department] and Sedgwick CMS including all sums paid prior to this
Stipulation and DCS and all sums paid after this Stipulation and DCS and
expressly including all sums paid per this Stipulation and DCS, regardless
of whether the denial is upheld as per this agreement. Thus all liens arising
out of this claim against the noncomplying employer or alleged at fault third
party are preserved and are not waived by this Stipulation and Disputed
Claim Settlement.”
Cite as 318 Or App 38 (2022) 43
The board agreed with claimant. In its third-party
order, although the board acknowledged Sedgwick’s initial
acceptance of the claim and payment of benefits and the par-
ties’ reservation of rights in the DCS, the board concluded
that Sedgwick and the division did not qualify as paying
agencies under the statutes, because of the DCS, under
which the claim was no longer compensable. In reliance on
SAIF v. Wright, 113 Or App 267, 832 P2d 1238 (1992), and
the board’s own subsequent caselaw, the board reasoned
that an insurer is a paying agency only when, at the time
of the worker’s settlement with the third party, the insurer
is paying benefits on a compensable claim. Because, as ulti-
mately agreed in the DCS, claimant’s claim was not com-
pensable, and because Sedgwick was not paying benefits to
claimant at the time she settled her tort action, the board
reasoned, Sedgwick was not a paying agency.
Sedgwick and the division seek judicial review,
asserting that the board has misinterpreted the relevant
statutes. The petition thus presents a question of statu-
tory construction, which we analyze under the methodology
described in State v. Gaines, 346 Or 160, 171-73, 206 P3d
1042 (2009), and PGE v. Bureau of Labor and Industries, 317
Or 606, 859 P2d 1143 (1993).
STATUTORY OVERVIEW
We begin with a statutory overview. Every employer
subject to the Workers’ Compensation Act is required to
maintain insurance and proof of insurance for the work-
related injuries of its employees. ORS 656.017. An employer
who fails to do so is “noncomplying” and is subject to civil
penalties as well as to claims by the injured worker. ORS
656.017; ORS 656.020; ORS 656.052; ORS 656.735. A worker
who is injured during employment with a noncomplying
employer is entitled to the same benefits as a worker whose
employer is in compliance with the statutes. ORS 656.054.
When an injured worker files a claim against a non-
complying employer, the department appoints an “assigned
claims agent.” ORS 656.054(1). An “assigned claims agent”
is “an insurer, casualty adjuster or a third party adminis-
trator with whom the director contracts to manage claims
44 Sedgwick CMS, Inc. v. Dover
of injured workers of noncomplying employers.” ORS
656.054(9). Sedgwick was the assigned claims agent on
claimant’s claim. It was obligated to process claimant’s claim
in the same manner as any other claim. ORS 656.054(1). As
noted, Sedgwick accepted claimant’s claim and began pay-
ing benefits.
Generally, a worker’s remedies for a compensable
injury are exclusively under the Workers’ Compensation Act.
ORS 656.018.4 When, however, a worker’s injury is asserted
to have been caused by the negligence or wrong of a third
party, ORS 656.154 provides that the worker “may elect to
seek a remedy against such third person.” The process relat-
ing to third-party claims is set out in the “third-party law,”
ORS 656.576 through ORS 656.596. If a compensable injury
is asserted to be due to the negligence or wrong of a third
person, entitling the worker to seek a remedy against the
third person under ORS 656.154, the worker is required to
elect whether to pursue a third-party action. ORS 656.578.5
If a worker’s injury entitles the worker to bring a
claim against a third party, the “paying agency” has a lien
against the cause of action, ORS 656.580(2), as provided in
ORS 656.591 (describing effect of a worker election not to
bring a third-party action) or ORS 656.593 (describing pro-
cedures when a worker elects to bring a third-party action).
A “paying agency” is defined in ORS 656.576 as “the self-
insured employer or insurer paying benefits to the worker or
beneficiaries.”
ORS 656.593 describes the procedures when a
worker elects and seeks recovery from a third party. When
4
ORS 656.018 provides:
“The liability of every employer who satisfies the duty required by ORS
656.017(1) is exclusive and in place of all other liability arising out of injuries,
diseases, symptom complexes or similar conditions arising out of and in the
course of employment that are sustained by subject workers[.]”
5
ORS 656.578 provides, in part:
“If a worker of a noncomplying employer receives a compensable injury in
the course of employment, or if a worker receives a compensable injury due
to the negligence or wrong of a third person (other than those exempt from
liability under ORS 656.018), entitling the worker under ORS 656.154 to seek
a remedy against such third person, such worker or, if death results from the
injury, the other beneficiaries shall elect whether to recover damages from
such employer or third person.”
Cite as 318 Or App 38 (2022) 45
a worker recovers “damages,” ORS 656.593(1) provides that
the damage proceeds are subject to a lien of the paying
agency for the paying agency’s share:
“The proceeds of any damages the worker or beneficia-
ries recover from an employer or third person are subject to
a lien of the paying agency for the paying agency’s share of
the proceeds as set forth in this section.”6
ORS 656.593(1).
When the worker settles an action against a third
party with the paying agency’s approval, ORS 656.593(3)
provides that the paying agency may accept a share of the
settlement proceeds “that is just and proper.” Thus, unlike
the proceeds of damages under ORS 656.593(1), the pro-
ceeds of a settlement are not subject to a paying agency’s
lien. Rather, the paying agency is limited to accepting a
“just and proper” amount of the settlement proceeds in sat-
isfaction of its lien.7
Sedgwick points out that, as an assigned claim
agent, it is defined as an “insurer.” ORS 656.005(14). And
it is undisputed that, after it accepted the claim and until
6
ORS 656.593(2) describes how the proceeds of damages are to be distributed:
“(a) Costs and attorney fees incurred must be paid, and the attorney fees
may not exceed the advisory schedule of fees established by the Workers’
Compensation Board for such actions.
“(b) The worker or the beneficiaries of the worker must receive at least
33-1/3 percent of the balance of the recovery.
“(c) The paying agency must be paid and retain the balance of the recov-
ery, but only to the extent that the paying agency is compensated for the
paying agency’s expenditures for compensation, first aid or other medical,
surgical or hospital service, and for the present value of reasonably expected
future expenditures the paying agency makes for compensation and other
costs of the worker’s claim under this chapter. * * *
“(d) The balance of the recovery must be paid to the worker or the benefi-
ciaries of the worker forthwith. The board shall resolve any conflict as to the
amount of the balance that the paying agency may retain.
“(2) The amount the worker or the beneficiaries of the worker retain
must be in addition to the compensation or other benefits to which the worker
or beneficiaries are entitled under this chapter.”
7
The worker’s share of the settlement proceeds is to be based on the amount
to which the worker would be entitled under ORS 656.593(1) from the proceeds of
a damages award. ORS 656.593(3). The paying agency’s “just and proper” share,
in turn, is an amount equal to or less than what a paying agency would be enti-
tled to receive from a judgment in a third-party action under ORS 656.593(1).
Turo v. SAIF Corp., 131 Or App 572, 575, 888 P2d 1043 (1994).
46 Sedgwick CMS, Inc. v. Dover
entry of the DCS, Sedgwick paid compensation to claimant.
On that basis, Sedgwick CMS and the division assert on
judicial review that they are paying agencies as defined in
ORS 656.576 and entitled to assert a lien under ORS 656.593
for amounts paid.
ANALYSIS
As noted, in rejecting the division and Sedgwick’s
assertion that they are paying agencies, the board relied in
part on Wright, which provided an interpretation of ORS
656.576, the statute defining “paying agency.” In Wright,
the claim had never been accepted and was in denied status
pending litigation at the time the claimant received a third-
party settlement. SAIF, the insurer, sought to assert a lien
as a paying agency for amounts it might be required to pay
should the claim be determined, through litigation, to be
compensable. 113 Or App at 269. SAIF had not paid benefits
on the claim, and there was no certainty that SAIF would be
required to pay benefits in the future. Id. at 271.
We disagreed with SAIF’s contention that it should
nonetheless be entitled to a lien on the claimant’s settlement
proceeds for its possible future obligation to pay benefits.
We cited our opinion in Schlecht v. SAIF, 60 Or App 449,
456, 653 P2d 1284 (1982), in which we said that the leg-
islature’s purpose in enacting ORS 656.593 “is to allocate
whatever the claimant recovers between him and the paying
agency and to provide reimbursement to those responsible for
statutory compensation of injured workers when damages
or settlements are obtained against the persons whose acts
caused the injuries.” (First emphasis in original; second
emphasis added.). We said that “[the third-party statutes]
allocate proceeds from a third-party settlement between
the claimant and the entity responsible for the payment of
workers’ compensation benefits.” Wright,113 Or App at 272.
In rejecting SAIF’s contention that it was a paying agency,
we concluded our opinion in Wright with the statement that
ORS 656.576 requires that, to qualify as a paying agency,
“[a]n insurer must be paying benefits at the time of the set-
tlement or distribution.” Id.
Since Wright, the board has understood that a pay-
ing agency is an insurer or self-insured employer responsible
Cite as 318 Or App 38 (2022) 47
for paying benefits on a compensable claim at the time of the
claimant’s settlement with the third party. The board con-
cluded here that, as a result of the DCS, Sedgwick was no
longer responsible for paying benefits, and, therefore, that
Sedgwick and, by extension, the division, were not paying
agencies.
Sedgwick and the division point out that Wright is
distinguishable on its facts and contend that it should not
control the outcome here. They are correct that the case is
factually distinguishable. In Wright, the claim had been
denied and was still in litigation. No benefits were owing
and no benefits had been paid. Id. at 269. The claimant then
recovered a third-party settlement, and SAIF sought to have
a share of the third-party settlement under ORS 656.593.
Under those circumstances, we concluded that SAIF was
not a paying agency entitled to seek a share of speculative
future benefits. As Sedgwick points out, we did not have
before us in Wright, nor address, the issue presented here,
whether an insurer that has previously paid benefits on
an accepted claim may seek to be reimbursed as a paying
agency if, before the third-party settlement, the claim is
denied and finally determined not to be compensable.
But although Wright is distinguishable on its facts,
as we explain below, Wright’s holding, that a paying agency
is the entity “responsible for the payment of workers’ com-
pensation benefits,” and that an insurer that has denied a
claim is not a paying agency, Wright, 113 Or App at 271,
is consistent with the third-party law statutory scheme,
which we conclude contemplates that, at the time of settle-
ment, the “paying agency” is “paying benefits”—that is, it is
responsible for paying benefits under ORS chapter 656 on a
compensable claim.
As an initial matter, we note that ORS 656.576
to 656.596 do not explicitly state that the third-party law
applies only to compensable claims or that an insurer that
has denied a claim cannot be a paying agency if it has paid
compensation. It is tempting, therefore, to be persuaded by
Sedgwick and division’s view that an insurer that has paid
compensation on a claim that was at one time accepted,
but that is in denied status at the time of a third-party
48 Sedgwick CMS, Inc. v. Dover
settlement, is nonetheless entitled to share in a claimant’s
third-party settlement proceeds. But our understanding of
the third-party law is that it exists as an exception to the
exclusivity of the workers’ compensation law with respect to
compensable injuries. The third-party law applies to com-
pensable claims. Thus, ORS 656.578 requires that a worker
who has suffered a compensable injury as a result of the
negligence of a third party elect to recover damages from
the negligent third party. Indeed, a paying agency may
compel an injured worker to make such an election, ORS
656.583(1). If the worker elects not to proceed with a third-
party action, then the paying agency may pursue the action.
ORS 656.591. And, if no election is made, the worker “is
deemed to have assigned the cause of action to the paying
agency.” ORS 656.583(2). That is because the paying agency,
as the entity obligated to continue to pay workers’ compen-
sation benefits on a compensable claim, has an interest in a
potential third-party recovery. If an injury or occupational
disease is not compensable, then no insurer is “paying bene-
fits,” no insurer has an interest in a third-party action, and
the third-party law is not applicable; in such a case, a claim-
ant’s recovery or settlement is not subject to the third-party
law.
Our conclusion is consistent with the statutory text
within the third-party law. In setting forth the definition
of “paying agency,” ORS 656.576 states that it defines the
term “[a]s used in ORS 656.578 to 656.595”—the provisions
of the third-party law. Thus, a paying agency is an entity
that exists in the context of the third-party law. At the risk
of repetition, we state again that a third-party action is
one brought to recover damages for injuries that are com-
pensable. Thus, as the board held, the definition of “paying
agency” implicitly contemplates a compensable claim.
Additionally, the definition requires that the self-
insured employer or insurer be paying benefits to the worker
or beneficiaries. Indeed, in Wright, we noted the present
tense of the term “paying benefits.” We construed the stat-
ute to require that the insurer must be “paying benefits” at
the time of the settlement. 113 Or App at 272. By “paying
benefits,” we did not hold that the statute means that the
Cite as 318 Or App 38 (2022) 49
insurer literally must be making payments to the worker at
the time of settlement; rather, the insurer must be responsi-
ble for paying benefits to the worker on a compensable claim.
We adhere to our holding in Wright.
Other provisions of the third-party law are con-
sistent with that conclusion. ORS 656.587 requires that a
paying agency approve any compromise of a worker’s third-
party action. If the claim is not compensable, then the action
is not a third-party action, and no approval is required.
If a claimant elects not to bring a third-party
action, and the paying agency pursues the negligent tort-
feasor, ORS 656.591 requires the paying agency to pay the
claimant the proceeds of any recovery in excess of
“the expenses the paying agency incurred in making the
recovery and the amount the paying agency expended for
compensation, first aid or other medical, surgical or hospi-
tal service, together with the present value of the monthly
payments of compensation to which the worker or other
beneficiaries may be entitled under [ORS chapter 656].”
ORS 656.591 thus allows the paying agency to estimate
future benefits to which the worker is entitled and contem-
plates that the paying agency remains responsible for pay-
ing compensation under ORS chapter 656.
ORS 656.593 describes the distribution of damages
or settlement proceeds when the worker has elected to pur-
sue a third-party action. Although, like ORS 656.591, ORS
656.593 does not explicitly limit those entitlements to insur-
ers of claims that are being processed as compensable, that
is implicit in the statute’s allowance of recovery “of the pres-
ent value of reasonably expected future expenditures the
paying agency makes for compensation and other costs of
the worker’s claim under [ORS chapter 656.].”
Like ORS 656.591, ORS 656.593 contemplates that
the paying agency remains responsible for paying the
worker benefits under ORS chapter 656. That understand-
ing is reinforced by ORS 656.593(6), which provides that, if
a worker recovers damages or a settlement of $1 million or
more, the worker may release the paying agency from fur-
ther liability on the claim, “thereby canceling the lien of the
50 Sedgwick CMS, Inc. v. Dover
paying agency as to the present value of the paying agency’s
reasonably expected future expenditures for workers’ com-
pensation recovery.”
Thus, we conclude that the third-party statutes,
understood together, require that a paying agency is an
insurer that is responsible for paying benefits on a com-
pensable claim at the time of settlement with a third-party
tortfeasor.8
We recognize that the unique posture of this case
makes it susceptible to the argument, made by Sedgwick
and the division, that Sedgwick is a paying agency because
benefits have been paid. But we reject that construction.
Sedgwick would have been a paying agency had the claim
not been denied and Sedgwick remained responsible for pay-
ing benefits. But when Sedgwick denied the claim through
the DCS, it was freed from its responsibility to pay benefits
under the Act and also lost its right under the third-party
law to seek reimbursement from a third-party settlement as
a paying agency. The reservation of rights that the parties
included in the DCS was essentially ineffectual, because, as
we have explained and as we held in Wright, an insurer that
has denied a claim at the time of settlement is not a paying
agency and does not have any statutory right to share in
settlement proceeds.
CONCLUSION
A paying agency’s right to share in settlement pro-
ceeds of a third-party action under ORS 656.593(3) depends
on it being a “paying agency” at the time of settlement.
Although Sedgwick initially accepted the claim and paid
claimant benefits, Sedgwick’s denial of claimant’s claim
meant that Sedgwick and the division were not paying
agencies under ORS 656.576 at the time of settlement. Thus,
8
The third-party law also protects an insurer’s right to recover proceeds on a
third-party claim, if, at the time of the worker’s recovery of damages from a third-
party tortfeasor, the worker has not yet filed a workers’ compensation claim. In
that circumstance, ORS 656.596 provides that the “the amount of the damages
shall constitute an offset against compensation due the worker or beneficiaries of
the worker for the injuries for which the recovery is made to the extent of any lien
that would have been authorized by ORS 656.576 to 656.596 if a workers’ com-
pensation claim had been filed and accepted at the time of recovery of damages.”
Cite as 318 Or App 38 (2022) 51
Sedgwick and the division were not entitled to seek reim-
bursement under ORS 656.593 from settlement proceeds
for compensation paid to claimant. We therefore affirm the
board’s order.
Affirmed.