# Hibbs v. Sedwick CMS (A180289)

> Court of Appeals of Oregon · May 14, 2025 · 340 Or. App. 431

URL: https://www.frixlaw.com/law-library/cases/11050589

## Case

- **Court:** Court of Appeals of Oregon
- **Decided:** May 14, 2025
- **Citations:** 340 Or. App. 431
- **Precedential status:** Published
- **Opinion:** Opinion
- **Judges:** Tookey
- **Cited by:** 3 later opinions in the Frix Law Library

## Citator (automated)

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- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11050589

## Opinion text

No. 422 May 14, 2025 431

IN THE COURT OF APPEALS OF THE
STATE OF OREGON

In the Matter of the Compensation of James Hibbs,
Claimant.
James HIBBS,
Petitioner,
v.
SEDGWICK CMS,
and Cascade Tissue Group Sales
Respondents.
Workers’ Compensation Board
2105190;
A180289

Argued and submitted April 15, 2025.
Julene M. Quinn argued the cause and filed the briefs for
petitioner.
Katherine M. Caldwell argued the cause and filed the
brief for respondents.
Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
TOOKEY, P. J.
Affirmed.
432 Hibbs v. Sedwick CMS (A180289)

TOOKEY, P. J.
This case is one of two cases decided today in which
we consider the division of jurisdiction between the Workers’
Compensation Board (the board), on the one hand, and the
Director of the Department of Consumer and Business
Services (the director), on the other.1
In this case, claimant seeks judicial review of a
final order of the board, which affirmed an order trans-
ferring to the director claimant’s request for a hearing
on what claimant describes as an “improperly requested
independent medical examination [(IME)] by the insurer
under ORS 656.325(1)(a) and related penalties and attorney
fees.” Claimant asserts that the board erred “in determin-
ing that it did not have jurisdiction over a dispute under
ORS 656.325 that involved whether an insurer improperly
requested more than three [IMEs] without first notifying
and obtaining authorization from the director.”
The issue in this case is the meaning of ORS
656.325(6), which provides that “[a]ny party may request a
hearing on any dispute under this section pursuant to ORS
656.283.” ORS 656.283(1), in turn, provides that “any party
or the Director of the Department of Consumer and Business

1
The other case is Hibbs v. Sedgewick CMS (A180280), 340 Or App 421, ___
P3d ___ (May 14, 2025), in which we conclude that the claimant’s request for the
assessment of a penalty under ORS 656.262(11)(a) was under the jurisdiction of
the director, not the board, when the request for the assessment stemmed from a
“medical services dispute” that was also under the jurisdiction of the director.
Additionally, at the outset, we note that the parties, as well as the board’s
order on review, frame this case as involving a matter of “jurisdiction,” although
some of the relevant statutes use the word “authority” rather than “jurisdiction.”
Compare, e.g., ORS 656.704(3)(a) (“For the purpose of determining the respec-
tive authority of the director and the board to conduct hearings, investiga-
tions and other proceedings under this chapter * * *.”), with ORS 656.262(11)(a)
(“Notwithstanding any other provision of this chapter, the director shall have
exclusive jurisdiction over proceedings regarding solely the assessment and pay-
ment of the additional amount and attorney fees described in this subsection.”).
In this opinion, we adopt the nomenclature used by the parties and the board,
because it does not affect our analysis, but we express no opinion on whether
that is the appropriate nomenclature, nor do we attempt to definitively define the
difference between jurisdiction and authority in this context. Cf. Weyerhaeuser
Co. v. Rich, 208 Or App 302, 304 n 1, 144 P3d 978, rev den, 342 Or 117 (2006)
(“choos[ing]” to use the term “authority,” although the board and the administra-
tive law judge used the term “jurisdiction,” but refraining from the “attempt to
definitively define either”).
Cite as 340 Or App 431 (2025) 433

Services may at any time request a hearing on any matter
concerning a claim, except matters for which a procedure for
resolving the dispute is provided in another statute, including
ORS 656.704.”
As claimant sees it, ORS 656.325(6) “has an express
statement providing the board with jurisdiction” over “any
dispute” under ORS 656.325, such as the dispute concerning
the allegedly improperly requested IME at issue in this case.
Moreover, as claimant sees it, the board’s jurisdiction to hear
disputes under ORS 656.325 does not depend on whether the
dispute at issue is a “matter concerning a claim” or not. Cf.
Mantle v. SAIF, 330 Or App 8, 14, 542 P3d 889 (2024) (“Generally
speaking, under ORS 656.704, the board has review authority
over matters concerning a claim, and the director has review
authority over matters other than those concerning a claim.”
(Internal quotation marks omitted)); see also ORS 656.704(3)(a)
(“[M]atters concerning a claim under this chapter are those
matters in which a worker’s right to receive compensation, or
the amount thereof, are directly in issue.”).
Respondent, for its part, contends that ORS
656.325(6) did not confer jurisdiction on the board in this
case, because this case “does not present a matter concern-
ing a claim.” As respondent sees it, ORS 656.325(6) does not
provide the board jurisdiction over “any dispute” under ORS
656.325, but only “any dispute” that the board could hear
under ORS 656.283(1), which in respondent’s view are lim-
ited to “matters concerning a claim.”
Thus, as framed, this case requires us to determine
whether, by operation of ORS 656.325(6), jurisdiction over a
dispute under ORS 656.325 that does not involve “matters
concerning a claim” properly lay with the director or with
the board.2 For the reasons below, we conclude that juris-
2
As explained below, the board determined that the issues “claimant has
raised are not ‘matters concerning a claim.’ ”
At oral argument, claimant stated that he “does not concede” that the issues
he raised in this case are not “matter[s] concerning a claim,” although claimant
also noted that that is “not what [he] rests [his] case on.”
We note that in his briefing on appeal, claimant did not assert that the board
erred in determining that the issues claimant raised are not “matters concerning
a claim.” Consequently, we do not analyze whether the board’s determination in
this case that the issues claimant raised were not matters concerning a claim is
correct. Colton and Colton, 297 Or App 532, 547-48, 443 P3d 1160 (2019) (“We do
434 Hibbs v. Sedwick CMS (A180289)

diction over such disputes properly lay with the director.
Consequently, we affirm.
I. HISTORICAL FACTS AND PROCEDURAL HISTORY
The relevant facts are both few and undisputed.
Claimant received a November 18, 2021, letter from employ-
er’s insurer processing agent indicating that an IME was
scheduled for December 2, 2021, and a November 22, 2021,
letter from the same processing agent notifying him of the
December 2, 2021, examination, and referring to it as a “man-
datory closing” IME. Claimant requested a hearing before
the board on December 10, asserting that the November 18,
2021, “IME notice was defective and unreasonable” and that
the November 22, 2021, “mandatory closing IME notice was
defective and unreasonable.” Claimant requested a penalty
and penalty-based attorney fee for each defective notice.
Employer and its processing agent maintained that “under
the circumstances presented in this case, the IME notices
were not defective or unreasonable, and that claimant has
not shown an entitlement to a penalty or penalty-based
attorney fee.”
An administrative law judge (ALJ) determined that
the issues claimant raised were not “matters concerning a
claim” and are “consequently under the [director’s] jurisdic-
tion.” It transferred the matter to the director for resolution.
Claimant sought review of that order before the
board. The board adopted and affirmed the ALJ’s order.
II. ANALYSIS
As noted, claimant asserts that the board erred
“in determining that it did not have jurisdiction over a dis-
pute under ORS 656.325 that involved whether an insurer
improperly requested more than three [IMEs] without first
notifying and obtaining authorization from the director.”
That argument is premised on claimant’s interpretation of
ORS 656.325(6).3
not consider appellate arguments—even if properly preserved—that are made on
appeal for the first time during oral argument.”). Accordingly, in the course of our
analysis, we assume without deciding that the board was correct that the issues
raised by claimant in this case are not “matters concerning a claim.”
3
Claimant also asserts that “the board erred in holding that the director
had exclusive jurisdiction over penalty issues under ORS 656.262(11)(a) when
Cite as 340 Or App 431 (2025) 435

Specifically, claimant asserts that jurisdiction before
the board was proper under ORS 656.325(6), because “being
allowed to request a hearing pursuant to ORS 656.283 is
express permission to request a hearing under the board’s
jurisdiction.” Further, as claimant sees it, the phrase “pur-
suant to ORS 656.283” in ORS 656.325(6) “just means to do
something according to ORS 656.283,” and does not “negate
the direction in ORS 656.325(6) that what a party may do
pursuant to ORS 656.283 is request a hearing.”
As respondent sees it, “ORS 656.325(6)’s directive
that requests for hearing made under that section be made
‘pursuant to’ ORS 656.283, means that requests for hear-
ing should be made in conformity with or according to ORS
656.283’s provisions.” Respondent argues that ORS 656.283(1)
includes an “exception in matters for which procedure for dis-
pute resolution is provided in another statute, including ORS
656.704.” That is, in respondent’s view, to determine jurisdic-
tion for a dispute under ORS 656.325(6), one must look to the
provisions of ORS 656.283(1) and to ORS 656.704.
The issue before us is solely one of law. We there-
fore review the board’s decision for legal error. Mantle, 330
Or App at 13-14. Further, because “the legal issue before us
is primarily one of statutory construction,” we apply “our
usual method of statutory construction, considering the text
and context of the relevant statutes and any relevant legis-
lative history we find helpful.” Id.
Before turning to the statutory provision that this
case requires us to construe—ORS 656.325(6)—we think it
helpful to provide an overview of the jurisdictional frame-
work applicable to Oregon’s scheme for workers’ compen-
sation generally and discuss ORS 656.325 specifically. We
then consider the parties’ arguments, concluding that the
board did not err in determining that the director had juris-
diction over this dispute.
claimant also raised a dispute to determine claimant’s rights and the insurer’s
responsibilities under ORS 656.325(1)(a) regarding requesting more than three
IMEs.” As claimant sees it, because the “IME dispute” under ORS 656.325 falls
under the jurisdiction of the board, “any attendant penalties or attorney fees
under ORS 656.262(11)(a) are also under the jurisdiction of the board.”
We need not address that issue, because we conclude that the IME dispute
under ORS 656.325 falls under the jurisdiction of the director and not the board.
436 Hibbs v. Sedwick CMS (A180289)

A. Jurisdiction in Workers’ Compensation Cases Generally
Under Oregon’s scheme for workers’ compensation,
“[g]enerally speaking, under ORS 656.704, the board has
review authority over matters concerning a claim, and the
director has review authority over matters other than those
concerning a claim.” Mantle, 330 Or App at 14 (internal quo-
tation marks omitted); see also Daugherty v. SAIF, 258 Or
App 512, 519, 310 P3d 713 (2013) (“Simply, the board has
exclusive authority, under ORS 656.704, over matters con-
cerning a claim * * *.” (Emphasis in Daugherty; internal quo-
tation marks omitted)).
More specifically, ORS 656.283(1)—which claimant
characterizes as “the statute providing for a hearing under
the board’s jurisdiction”—provides, as relevant here, that
“any party * * * may at any time request a hearing on any
matter concerning a claim, except matters for which a proce-
dure for resolving the dispute is provided in another statute,
including ORS 656.704.” (Emphasis added.)
ORS 656.704(2)(a), in turn, provides that a party
“dissatisfied with an action or order regarding a matter other
than a matter concerning a claim under this chapter may
request a hearing on the matter in writing to the director.”
(Emphasis added.)
Finally, ORS 656.704(3)(a) sets forth the meaning of
“matter concerning a claim,” providing, in relevant part:
“For the purpose of determining the respective author-
ity of the director and the board to conduct hearings, inves-
tigations and other proceedings under this chapter, and
for determining the procedure for the conduct and review
thereof, matters concerning a claim under this chapter are
those matters in which a worker’s right to receive compen-
sation, or the amount thereof, are directly in issue.”
As noted, in this case, the ALJ and the board deter-
mined that the underlying IME dispute was not a “matter
concerning a claim.”
B. ORS 656.325 Specifically
ORS 656.325 contains certain requirements regard-
ing medical examinations for injured workers. Claimant’s
Cite as 340 Or App 431 (2025) 437

request for a hearing asserted that employer’s insurer pro-
cessing agent’s conduct was in violation of ORS 656.325(1)
(a), which provides, in relevant part:
“Any worker entitled to receive compensation under this
chapter is required, if requested by the Director of the
Department of Consumer and Business Services, the
insurer or self-insured employer, to submit to a medi-
cal examination at a time reasonably convenient for the
worker as may be provided by the rules of the director. No
more than three independent medical examinations may
be requested except after notification to and authorization
by the director.”
Notwithstanding that the dispute in this case is not
a “matter concerning a claim,” claimant asserts that juris-
diction lay with the board, not the director, by operation of
ORS 656.325(6). As quoted above, that subsection provides:
“Any party may request a hearing on any dispute under
this section pursuant to ORS 656.283.”
C. Construing ORS 656.325(6)
As explained below, we conclude that the board did
not err in this case in determining that jurisdiction under
ORS 656.325(6) properly lay with the director.
We begin with the text, which is “the best evidence
of the legislature’s intent.” State v. Browning, 282 Or App
1, 3, 386 P3d 192 (2016), rev den, 361 Or 311 (2017) (inter-
nal quotation marks omitted). The text of ORS 656.325(6)
is brief: “Any party may request a hearing on any dispute
under this section pursuant to ORS 656.283.”
As a textual matter, we have construed the term
“pursuant to” in statutes on numerous occasions. We
have explained that, as defined in Webster’s Third New
International Dictionary (unabridged ed 2002), the prep-
osition “ ‘pursuant to’ ” means “ ‘in the course of carrying
out : in conformance to or agreement with: according to[.]’ ”
See, e.g., C. R. v. Gannon, 281 Or App 1, 8, 381 P3d 869
(2016) (quoting Webster’s at 1848). And as defined in Black’s
Law Dictionary (8th ed 2004), “ ‘pursuant to’ ” means either
“ ‘[i]n compliance with; in accordance with; under’ ” or “ ‘[a]
s authorized by; under.’ ” See, e.g., Jones v. Douglas County
438 Hibbs v. Sedwick CMS (A180289)

(A148612), 247 Or App 81, 93, 270 P3d 278 (2011) (quoting
Black’s at 1272).
Here, in understanding the meaning of the term
“pursuant to,” we think our construction of that phrase in
Smith v. Board of Parole, 272 Or App 493, 496-97, 356 P3d
158 (2015), is helpful. In Smith, the petitioner contended
that “ORS 144.123 creates a ‘right’ for the inmate to bring
any ‘person of the inmate’s choice’ to” hearings of the State
Board of Parole and Post-Prison Supervision. Id. at 496. At
that time, ORS 144.123 provided:
“ ‘When appearing before the State Board of Parole and
Post-Prison Supervision an inmate shall have the right
to be accompanied by a person of the inmate’s choice pur-
suant to rule promulgated jointly by the State Board of
Parole and Post-Prison Supervision and the Department
of Corrections.’ ”
Smith, 272 Or App at 496 (emphasis in Smith).
We disagreed with the petitioner’s contention
regarding ORS 144.123. Relying on the definition of “pur-
suant to” provided in Black’s Law Dictionary, we explained
that the word “choice” in ORS 144.123 was “qualified” by
the phrase “ ‘pursuant to a rule promulgated jointly by the
‘board and department.’ ” Thus, the text of ORS 144.123
“demonstrate[d] the legislature’s intent that the inmate’s
choice must be in compliance with and to the extent autho-
rized by the administrative rules.”
Applying that textual understanding of the mean-
ing of “pursuant to” here, it seems to us that the operative
phrase in ORS 656.325(6), i.e., “[a]ny party may request a
hearing on any dispute under this section,” is “qualified” by
the phrase “pursuant to ORS 656.283,” meaning that an
individual’s request for a hearing must be “in compliance
with and to the extent authorized by” ORS 656.283.
As noted above, ORS 656.283 authorizes a party to
request a hearing before the board “on any matter concern-
ing a claim, except matters for which a procedure for resolv-
ing the dispute is provided in another statute, including
ORS 656.704.” ORS 656.704 provides that a party “dissatis-
fied with an action or order regarding a matter other than a
Cite as 340 Or App 431 (2025) 439

matter concerning a claim * * * may request a hearing on the
matter in writing to the director.” Thus, as a textual matter,
we understand ORS 656.325(6), by way of ORS 656.283(1),
to direct matters concerning a claim to the board and mat-
ters other than matters concerning a claim, by way of ORS
656.704, to the director. That is, for a hearing request before
the board to be in “compliance with” and “authorized by”
ORS 656.283(1), the request must be on a “matter concern-
ing a claim.”4
That understanding of ORS 656.325(6) is supported
by the statutory context of ORS 656.325(6). As noted above,
under Oregon’s scheme for workers’ compensation, “[g]ener-
ally speaking, under ORS 656.704, the board has review
authority over matters concerning a claim, and the director
has review authority over matters other than those concern-
ing a claim.” Mantle, 330 Or App at 14; State v. Carr, 319 Or
408, 411-12, 877 P2d 1192 (1994) (“Context includes other
related statutes.”). Construing “pursuant to” in accordance
with its ordinary dictionary meaning as set forth above, and
so applying it, is in harmony with that “general” rule.5 See
Lane County v. LCDC, 325 Or 569, 578, 942 P2d 278 (1997)
(“[W]e do not look at one subsection of a statute in a vacuum;
4
In considering the text of ORS 656.325(6), we observe that “any dispute
under this section” is broad statutory language; the word “any” is “broadly inclu-
sive, a fact that Oregon appellate courts have historically recognized.” State v.
Meier, 259 Or App 482, 486, 314 P3d 359 (2013), rev den, 354 Or 735 (2014).
Nevertheless, just as “the right to be accompanied by a person of the inmate’s
choice” in Smith was qualified by the proviso “pursuant to” in ORS 144.123, we
understand “any dispute” in ORS 656.325(6) to be qualified by the proviso “pur-
suant to ORS 656.283.”
5
We also observe that, prior to 1995, ORS 656.283(1) provided the board
with jurisdiction over “question[s] concerning a claim.” ORS 656.283 (1993). In
1995, ORS 656.283 was amended to provide the board with jurisdiction over
“matter[s] concerning a claim” rather than “question[s] concerning a claim.” Or
Laws 1995, ch 332, § 34.
The 1995 enactment, which amended ORS 656.283(1), amended other stat-
utes in ORS chapter 656 as well, and ultimately “made extensive changes to the
Workers’ Compensation Law.” Jensen v. Conagra, Inc., 152 Or App 449, 451, 954
P2d 822 (1998). Among those changes was to provide the director with “exclusive
jurisdiction to review whether proposed medical treatment is excessive, inappro-
priate, ineffectual or in violation of applicable rules.” Newell v. SAIF, 136 Or App
280, 282, 902 P2d 600 (1995).
We think our construction of ORS 656.325(6), which gives effect jurisdic-
tional changes in ORS 656.283(1), is consistent with those 1995 amendments to
the Workers’ Compensation Law.
440 Hibbs v. Sedwick CMS (A180289)

rather, we construe each part together with the other parts
in an attempt to produce a harmonious whole.”).
Finally, we note that neither party has proffered
any legislative history to this court, and given the text of
ORS 656.325(6) and its context, we have not independently
sought legislative history regarding ORS 656.325(6) our-
selves. See McClusky v. City of North Bend, 332 Or App 1,
23, 549 P3d 557, rev den, 372 Or 812 (2024) (“The parties
have not pointed us to any pertinent legislative history, and
we have not independently sought such legislative history,
as it is unnecessary for us to do so in light of the text of ORS
659A.203(1)(b) and its context.”); see also ORS 174.020(3) (“A
court may limit its consideration of legislative history to the
information that the parties provide to the court.”).
Affirmed.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11050589. Public record. Not legal advice.