Department of Consumer & Business Services v. Muliro

736 June 16, 2016 No. 39

IN THE SUPREME COURT OF THE

STATE OF OREGON

In the Matter of the Compensation of

Rebecca M. Muliro, Claimant.

DEPARTMENT OF CONSUMER

AND BUSINESS SERVICES,

Workers’ Compensation Division;

and ComPro, Inc.,

Respondents on Review,

v.

Rebecca M. MULIRO,

Petitioner on Review,

and

LIBERTY NORTHWEST

INSURANCE CORPORATION;

Adams & Gray Home Care - Marquis Home Health;

and Assured at Home,

Respondents.

(WCB 103496, 1102720; CA A152594; SC S062922)

En Banc

On review from the Court of Appeals.*

Submitted on the record on January 12, 2016.

R. Adian Martin, Portland, filed the brief for petitioner

on review.

Greg Rios, Assistant Attorney General, Salem, filed the

brief for respondent on review. With him on the brief were

Ellen F. Rosenblum, Attorney General, and Paul L. Smith,

Deputy Solicitor General.

NAKAMOTO, J.

The decision of the Court of Appeals is affirmed. The

order of the Workers’ Compensation Board is reversed, and

the case is remanded to the board for further proceedings.

______________

*  Review from Workers’ Compensation Board. 267 Or App 526, 341 P3d 131

(2014).

Cite as 359 Or 736 (2016) 737

Case Summary: The Department of Consumer and Business Services (DCBS)

sought judicial review of the Workers’ Compensation Board’s order providing

that, under ORS 656.210(2)(b), the employer’s preexisting knowledge of claim-

ant’s secondary employment was imputed to the insurer. DCBS argued that,

under the express terms of ORS 656.210(2)(b)(A), what a claimant must provide,

and the insurer must receive, is actual notice. The Court of Appeals agreed that,

under ORS 656.210(2)(b)(A), the insurer must receive actual notice. Held: ORS

656.210(2)(b)(A) requires a claimant to prove that the insurer received actual

notice of the claimant’s secondary employment within 30 days of the insurer’s

receipt of the initial claim.

The decision of the Court of Appeals is affirmed. The order of the board is

reversed, and the case is remanded to the board for further proceedings.

738 DCBS v. Muliro

NAKAMOTO, J.

Under the Workers’ Compensation Act, an injured

worker with more than one employer may be entitled to

receive supplemental temporary disability benefits from the

Workers’ Benefit Fund, in addition to the disability benefits

the worker receives from the employer’s insurer. The injured

worker cannot qualify “unless the insurer * * * receives,”

within 30 days of receipt of an initial claim, “notice that the

worker was employed in more than one job” at the time of

injury. ORS 656.210(2)(b)(A). The question in this case is

whether an injured worker must provide actual notice of

the worker’s secondary employment in connection with the

claims process or whether the employer’s preexisting knowl-

edge of that employment may be imputed to the insurer to

satisfy the notice requirement of ORS 656.210(2)(b)(A). We

hold that the correct interpretation of ORS 656.210(2)(b)(A)

requires a claimant to prove that the insurer received actual

notice of the claimant’s secondary employment within 30

days of the insurer’s receipt of the initial claim.

I. BACKGROUND

We take the historical facts, which are undisputed,

from the findings of the Workers’ Compensation Board in its

order on review. While claimant was employed by Adams

& Gray Home Care-Marquis Home Health (Adams & Gray)

as a certified nursing assistant, she sustained a workplace

injury.

At that time, claimant also worked for two other

home health employers, and Adams & Gray was aware of

that fact. Two coordinators at Adams & Gray responsible for

scheduling claimant’s work hours, claimant’s supervisors,

knew of her secondary employment because claimant would

at various times let a supervisor know, when asked to han-

dle a placement, that she was already scheduled by another

agency.

Claimant promptly sought workers’ compensation

benefits for her injury. She filed a workers’ compensation

claim, which Adams & Gray’s insurer, Liberty Northwest

Insurance Corporation (Liberty), received less than a week

later. As part of her claim, claimant filled out and signed

Cite as 359 Or 736 (2016) 739

several workers’ compensation benefits forms that were

submitted to Liberty—a Liberty claim form (Form 801) and

a Department of Consumer and Business Services (DCBS)

“Worker’s and Physician’s Report for Workers’ Compensation

Claims” form (Form 827). On each form, there was a box

above the signature line labeled either “Check here if you

are employed w/more than one employer” or “Check here

if you have more than one employer.” Claimant did not

check the boxes on those forms that would have indicated

that she had more than one employer. Form 801 contained

Liberty’s mailing address, telephone number, and fax num-

ber, and Form 827 provided a telephone number to call in

case the claimant did not “know the name and address of

the insurer.”

Claimant gave a recorded statement to a claims

investigator less than two weeks after she had filed her

claim. Claimant told the investigator that Adams & Gray

usually gave her 40 hours of work per week. The investiga-

tor did not ask claimant whether she had other employers

while working for Adams & Gray, and claimant did not vol-

unteer that information. Within 30 days of filing her claim,

neither claimant nor Adams & Gray had informed Liberty

that claimant had secondary employment, and Liberty was

unaware of that fact.

Approximately nine months after her injury,

claimant informed Liberty through counsel that she had

had multiple employers at the time of her injury and

requested supplemental temporary disability benefits.

Liberty elected not to process the claim for supplemental

disability benefits, so DCBS, through its assigned process-

ing administrator, ComPro, Inc., did so.1 ComPro denied

claimant’s request on the ground that claimant was inel-

igible for those benefits because Liberty had not received

timely notice of claimant’s secondary employment, as

required by ORS 656.210(2)(b)(A).

1

If an insurer elects to transfer responsibility to process and pay supple-

mental disability benefits, DCBS will “administer and pay the supplemental

benefits directly or shall assign responsibility to administer and process the

payment to a paying agent selected by the director.” ORS 656.210(5)(b); OAR

436-060-0035(l)(a). In that event, ComPro acts as assigned administrator for

supplemental disability benefits on behalf of DCBS.

740 DCBS v. Muliro

Subsequently, claimant requested a hearing before

the board’s Hearings Division. Based on Adams & Gray’s

knowledge of claimant’s secondary employment and the

reasoning of an earlier board decision, the administra-

tive law judge (ALJ) concluded that Liberty had received

timely notice of claimant’s secondary employment. The

ALJ determined that claimant was eligible for supple-

mental disability benefits and ordered ComPro to process

claimant’s claim. DCBS and ComPro sought board review

of that decision, and the board affirmed the ALJ’s order.

The board concluded that “the ‘notice’ requirement of ORS

656.210(2)(b)(A) has been met when the employer receives

information regarding secondary employment.”

The board acknowledged that the express language

of the statute provides that notice must be received by the

“insurer” and that an “employer (unless it is self-insured)

has no express statutory obligation to pass information/

knowledge to its insurer or statutory administrator, and

no responsibilities under the Director’s rules for process-

ing supplemental disability claims.” But, the board stated

that it is “well settled that, with respect to the process-

ing of claims, notice provided by a claimant to an insured

employer may be imputed to the insurer.” According to the

board, even if claimant had the burden to provide notice of

secondary employment, “[c]laimant did provide the infor-

mation, albeit to [Adams & Gray],” and the “issue of whether

[the required] information should be imputed from [Adams

& Gray] to [Liberty] is a matter distinct from the express

statutory language.” (Footnote omitted; emphasis in orig-

inal.) As support, the board cited three Court of Appeals

cases “dealing with ‘imputation’ between an employer and

its insurer”: Anfilofieff v. SAIF, 52 Or App 127, 627 P2d 1274

(1981); Nix v. SAIF, 80 Or App 656, 723 P2d 366, rev den,

302 Or 158 (1986); and SAIF v. Abbott, 103 Or App 49, 796

P2d 378 (1990), modified on recons, 107 Or App 53, 810 P2d

878 (1991). Underlying the board’s decision was its concern

that it should not interpret the statutory scheme in a way

that “would allow an employer to nullify a supplemental dis-

ability claim by simply refraining from forwarding other-

wise timely received supplemental disability information to

its insurer.”

Cite as 359 Or 736 (2016) 741

DCBS, with Liberty and Adams & Gray join-

ing, sought judicial review in the Court of Appeals.

DCBS argued that, under the express terms of ORS

656.210(2)(b)(A), what a claimant must provide, and

the insurer must receive, is “actual notice.” The Court of

Appeals agreed that ORS 656.210(2)(b)(A) identifies who

must receive notice and makes no provision for any type of

notice other than actual notice. DCBS v. Muliro, 267 Or

App 526, 536, 341 P3d 131 (2014). The Court of Appeals

also noted that the director of DCBS had adopted an agency

rule to implement the provisions of ORS 656.210(2)(b) that

was consistent with its reading of the statute. That rule,

OAR 436-060-0035(6), is not challenged in this case and

augments ORS 656.210(2)(b) by expressly stating that the

injured worker must provide notice to the insurer. The

Court of Appeals determined that Anfilofieff, Nix, and

Abbott did not “provide helpful context for an interpretation

of the notice requirement in ORS 656.210(2)(b)(A).” Muliro,

267 Or App at 535. Instead, the court considered its rea-

soning in Valencia v. GEP BTL, LLC, 247 Or App 115, 269

P3d 65 (2011), to be instructive. Relying on that case, the

Court of Appeals determined that “an injured worker seek-

ing supplemental disability has the burden of satisfying the

requirements of ORS 656.210(2)(b); when the worker does

not provide the necessary information, the entity responsi-

ble for processing the claim is not obligated to independently

seek that information out.” Muliro, 267 Or App at 536. As a

result, the Court of Appeals rejected claimant’s contention

that Adams & Gray’s knowledge of claimant’s secondary

employment should be imputed to Liberty.

Claimant petitioned for review in this court, chal-

lenging the conclusion that ORS 656.210(2)(b)(A) requires a

claimant to provide, and the insurer to receive, actual notice

of secondary employment. We allowed review to address the

interpretation of ORS 656.210(2)(b)(A).

II. ANALYSIS

The issue presented involves statutory construc-

tion, which we resolve by applying familiar principles set

out in PGE v. Bureau of Labor and Industries, 317 Or 606,

610-12, 859 P2d 1143 (1993), and State v. Gaines, 346 Or

742 DCBS v. Muliro

160, 171-72, 206 P3d 1042 (2009). We attempt to discern the

meaning of the statute most likely intended by the legis-

lature that enacted it, examining the text in context, any

relevant legislative history, and pertinent rules of interpre-

tation. Gaines, 346 Or at 171-72.

Determining the intended meaning of a statute is

a question of law. Bergerson v. Salem-Keizer School District,

341 Or 401, 411, 144 P3d 918 (2006). But, depending on

the nature of the statutory terms at issue, an administra-

tive agency’s construction of a statute nevertheless may be

entitled to a measure of deference. See generally Springfield

Education Assn. v. School Dist., 290 Or 217, 223, 621 P2d 547

(1980) (summarizing the categorization of statutory terms).

Whether the agency’s construction is entitled to such defer-

ence depends on whether the disputed term is exact, inexact,

or delegative. Id. Whether legislation is exact, inexact, or del-

egative is itself a question of statutory construction, requir-

ing us to examine the text of the statute in its context. J. R.

Simplot Co. v. Dept. of Agriculture, 340 Or 188, 197-98, 131

P3d 162 (2006). As explained below, this case involves inexact

terms, and, in those types of cases, we examine the meaning

of the statute without deference to the agency’s construction.

A.  Supplemental Disability Benefits and the Statute

We begin our analysis with an overview of the

supplemental temporary disability benefits and the stat-

ute at issue. The Workers’ Benefit Fund (the Fund) pays

for special benefits designed to promote full employment

and compensation to injured workers. OAR 411-031-

0040(10)(c)(B). The Fund is created in the State Treasury,

separate and distinct from the General Fund, and is pri-

marily funded by employer assessments, noncomplying

employer recoveries, and civil penalties. ORS 656.605(1);

see ORS 656.054; ORS 656.506; ORS 656.735. Assessments

collected for the Fund are computed yearly to meet its needs.

ORS 656.506(4). Development of the assessment rate takes

into consideration estimates of annual fund expenditures

and revenues, annual hours worked per employee, the num-

ber of employees covered by workers’ compensation insur-

ance, and the Fund balance requirements. OAR 436-070-

0010(2). The Fund is “appropriated continuously” to the

Cite as 359 Or 736 (2016) 743

director of DCBS “to carry out the activities for which the

fund may be expended.” ORS 656.605(3). And the director

of DCBS has the authority to distribute funds, as well as to

increase assessments or lower benefits when needed. ORS

656.605(3) - (4); ORS 656.506.

One of the special benefits that is paid out of the

Fund is the replacement of lost wages for the injured work-

er’s secondary employment—that is, multiple-employer sup-

plementary temporary total disability benefits (also known

as “supplemental temporary disability benefits,” “supple-

mental disability benefits,” or “supplemental disability”).

See ORS 656.210(5); ORS 656.605(2)(d); OAR 436-060-

0035(1)(e); OAR 436-060-0500. The cost of administering

those benefits is also paid out of the Fund. ORS 656.210(5);

ORS 656.605(2)(d).

Temporary total disability compensation is typi-

cally based on wages from a single employer. Under ORS

656.210(1), an injured worker can receive temporary total

disability compensation in an amount based on the work-

er’s wages.2 If the worker has “one job at the time of injury,”

the amount of compensation is based on the worker’s weekly

wage from that one job. ORS 656.210(2)(a)(A).

But, if the worker has “more than one job at the

time of injury,” the amount of compensation can be based

on “all earnings the worker was receiving from all subject

employment.” ORS 656.210(2)(a)(B). The statute in dispute,

ORS 656.210(2)(b)(A), sets out one of the requirements for

an injured worker to become eligible for the supplemental

temporary disability benefits paid out of the Fund.

An injured worker is not entitled to supplemental

disability

“unless the insurer, self-insured employer or assigned

claims agent for a noncomplying employer receives:

2

ORS 656.210(1) provides, in part:

“When the total disability is only temporary, the worker shall receive

during the period of that total disability compensation equal to 66-2/3 per-

cent of wages, but not more than 133 percent of the average weekly wage nor

less than the amount of 90 percent of wages a week or the amount of $50 a

week, whichever amount is less.”

744 DCBS v. Muliro

“(A)  Within 30 days of receipt of the initial claim, notice

that the worker was employed in more than one job with a

subject employer at the time of injury; and

“(B)  Within 60 days of the date of mailing a request for

verification, verifiable documentation of wages from such

additional employment.”

ORS 656.210(2)(b) (emphases added). Thus, ORS 656.210(2)(b)

provides that an injured worker is ineligible for supplemen-

tal disability benefits unless the employer’s insurer receives

two items, each within a required time period: (1) notice of

the injured worker’s secondary employment within 30 days

of the “receipt of the initial claim” under subparagraph (A)

and (2) “verifiable documentation of wages” of that addi-

tional employment within 60 days from when the insurer

requests the documentation under subparagraph (B).

Subparagraph (A) is silent as to whether the worker

or the employer is responsible for providing notice of the

injured worker’s secondary employment to the insurer.

However, DCBS’s rule, OAR 436-060-0035(6)(b), states that

an injured worker is eligible for supplemental disability ben-

efits if “[t]he worker provides notification of a secondary job

to the insurer within 30 days of the insurer’s receipt of the

initial claim[.]” DCBS’s rule expressly places the burden of

providing the notice on the worker. That rule also requires a

worker to provide notice within a specific timeframe, namely,

within 30 days of the insurer’s receipt of the initial claim.

B.  Text and Context of ORS 656.210(2)(b)(A)

On review, claimant reprises the arguments she

made before the Court of Appeals. The gravamen of claim-

ant’s position is that an insured employer’s knowledge of

an injured worker’s secondary employment at the time of

her injury—regardless of how or when that knowledge was

acquired—is imputed to the employer’s insurer for pur-

poses of ORS 656.210(2)(b)(A). Claimant does not dispute

that the text of ORS 656.210(2)(b)(A) appears to require

that the insurer receive actual notice of an injured work-

er’s secondary employment. She instead draws our atten-

tion to (1) “context,” which, according to claimant, includes

the surrounding workers’ compensation statutes, common

law principles of agency, and Oregon case law, and (2) the

Cite as 359 Or 736 (2016) 745

legislative history of the statute. We conclude that the text

of ORS 656.210(2)(b)(A), in context, is dispositive.

We turn first to the text of ORS 656.210(2)(b) to

determine the meaning of the disputed words “receive”

and “notice.” In construing those two words, we pay care-

ful attention to “the exact wording of the statute.” State v.

Vasquez-Rubio, 323 Or 275, 280, 917 P2d 494 (1996). We

do so because only that wording received the consideration

and approval of a majority of the members of the Legislative

Assembly. OR-OSHA v. CBI Services, Inc., 356 Or 577, 588,

341 P3d 701 (2014). As we explained in Gaines, that formal

adoption process produces “the best source from which to

discern the legislature’s intent, for it is not the intent of indi-

vidual legislators that governs, but the intent of the legisla-

ture as formally enacted into law.” 346 Or at 171.

As mentioned, to determine the meaning of the

terms in the phrase “receives * * * notice” as it is used in

ORS 656.210(2(b) and subparagraph (A), we must ascertain

whether they are exact, inexact, or delegative in nature,

so that we may apply the appropriate standard of review.

In this case, we swiftly conclude that the statutory phrase

“receives * * * notice” contains inexact terms: Neither term is

so precise that no interpretation is necessary (as to require

only factfinding), as is the case for exact terms. Nor does

the phrase indicate that the legislature intended to delegate

the determination of its meaning to an agency charged with

implementing the statute, such as the term “good cause,” an

open-ended phrase that necessitates further administrative

agency policymaking. See Springfield Education Assn., 290

Or at 223; see also Bergerson, 341 Or at 411 (inexact terms

“express a complete legislative meaning but with less pre-

cision”). For that reason, we examine the meaning of ORS

656.210(2)(b)(A) without deference to DCBS’s construction.

Blachana, LLC v. Bureau of Labor and Industries, 354 Or

676, 687, 318 P3d 735 (2014) (agency’s interpretation of non-

delegative term “is not entitled to deference on review”).

Because the statute does not define the disputed

terms, our task is to determine the intended meaning of

“receives * * * notice,” applying the ordinary tools of statu-

tory construction. When the legislature has not defined a

746 DCBS v. Muliro

word or a phrase, we assume, at least initially, that the word

or phrase has its “plain, natural, and ordinary” meaning.

PGE, 317 Or at 611. We frequently consult dictionary defini-

tions of the terms, on the assumption that, if the legislature

did not give the term a specialized definition, the dictionary

definition reflects the meaning that the legislature would

naturally have intended. State v. Murray, 340 Or 599, 604,

136 P3d 10 (2006). But, when the legislature uses technical

terminology, that is, “terms of art” that are “drawn from

a specialized trade or field[,]” courts “look to the meaning

and usage of those terms in the discipline from which the

legislature borrowed them.” Comcast Corp. v. Dept. of Rev.,

356 Or 282, 296, 337 P3d 768 (2014). When “a term is a legal

one, we look to its ‘established legal meaning’ as revealed

by, for starters at least, legal dictionaries.” Id. We do not,

however, interpret statutes solely on the basis of dictionary

definitions. State v. Cloutier, 351 Or 68, 96, 261 P3d 1234

(2011). Instead, we examine word usage in context to deter-

mine which among competing definitions is the one that the

legislature more likely intended. State v. Fries, 344 Or 541,

547-48, 185 P3d 453 (2008) (context determines which of

multiple definitions is the one the legislature intended).

We begin with the ordinary meaning of the word

“receive.” “Receive” is defined as “to take possession or deliv-

ery of * * * <~ a letter>.” Webster’s Third Int’l Dictionary 1894

(unabridged ed 2002). Similarly, The American Heritage

Dictionary of the English Language 1467 (5th ed 2011)

defines “receive” as “1a. To take or acquire (something given

or offered); get or be given: receive a present. b. To be the

person who gets (something sent or transmitted): receive an

email.” (Emphases in original.) Thus, in ordinary usage, the

word “receive” connotes a person getting something sent or

transmitted to him or her. The same is true in legal usage.

See Black’s Law Dictionary 1460 (10th ed 2014) (to receive

means “[t]o take (something offered, given, sent, etc.); to

come into possession of or get from some outside source <to

receive presents>”).

The ordinary meaning of the word “notice” can vary

from its usage as a legal term of art. Webster’s, for example,

defines “notice” as “a communication of intelligence or of a

claim or demand often required by statute or contract and

Cite as 359 Or 736 (2016) 747

prescribing the manner or form of giving it[.]” Webster’s at

1544. Similarly, The American Heritage Dictionary of the

English Language 1206 (5th ed 2011) defines “notice” as

“3. A written or printed announcement: a notice of sale.

4a. A formal announcement, notification, or warning, espe-

cially an announcement of one’s intention to withdraw from

an agreement or leave a job: gave my employer two weeks’

notice; raised the price without notice. b. The condition

of being formally warned or notified: put us on notice for

chronic lateness.”

(Emphases in original.) Thus, in ordinary usage, “notice”

requires or connotes some form of communication. See

Wright v. Turner, 354 Or 815, 827, 322 P3d 476 (2014) (unde-

fined terms are assumed to have ordinary meanings).

“Notice,” however, can include constructive or

imputed knowledge of a fact when used as a legal term of

art. For example, Black’s defines “notice” as

“1.  Legal notification required by law or agreement,

or imparted by operation of law as a result of some fact

(such as the recording of an instrument); definite legal cog-

nizance, actual or constructive, of an existing right or title

* * *. A person has notice of a fact or condition if that person

(1) has actual knowledge of it; (2) has received information

about it; (3) has reason to know about it; (4) knows about

a related fact; or (5) is considered as having been able to

ascertain it by checking an official filing or recording.

“2.  The condition of being so notified, whether or not

actual awareness exists[.]”

Black’s at 1227. Thus, the ordinary meaning of “notice”

does not necessarily apply to that word as it is used in ORS

656.210(2)(b)(A).

Claimant’s position is consistent with “notice” being

used in the statute as a legal term that encompasses imputed

notice. In our view, however, the legislature’s use of the term

“receives” cuts against claimant’s proposed interpretation,

which permits the knowledge of claimant’s other employ-

ment by supervisors who scheduled her work at Adams &

Gray to be imputed to Liberty to satisfy the requirement

in ORS 656.210(2)(b)(A). That is because imputed notice,

by definition, is not “received” by the party to whom it is

748 DCBS v. Muliro

imputed. Instead, imputed notice is “[i]nformation attributed

to a person.” Black’s at 1228 (defining “imputed notice” as

“[i]nformation attributed to a person whose agent, having

received actual notice of the information, has a duty to dis-

close it to that person”) (emphasis added). If Adams & Gray’s

preexisting knowledge of claimant’s secondary employment,

unconnected to the claims process, is attributed to Liberty,

Liberty would not actually be receiving, that is, taking pos-

session or delivery of, that information.

In several ways, the context of ORS 656.210(2)(b)(A)

confirms that the legislature intended that an insurer

must receive actual notice of an injured worker’s secondary

employment. First, the larger scheme of ORS 656.210(2)(b)

provides contextual evidence that supports that reading. See

Force v. Dept. of Rev., 350 Or 179, 188, 252 P3d 306 (2011)

(explaining that statutory context includes “other parts of

the statute at issue”). The statute plainly indicates who

must receive notice: an “insurer,” a “self-insured employer”

or an “assigned claims agent for a noncomplying employer.”

ORS 656.210(2)(b). An “employer,” i.e., a person or entity

“who contracts to pay a remuneration for and secures the

right to direct and control the services of any person,” ORS

656.005(13)(a), such as Adams & Gray, is not listed. Instead,

under ORS 656.210(2)(b), notice of secondary employ-

ment must be given directly to an employer only when the

employer is a “self-insured employer.” Unlike Adams &

Gray, a “self-insured employer” is an employer who “directly

assumes the responsibility for providing compensation due

subject workers and their beneficiaries under [the workers’

compensation statutes],” ORS 656.403(1), and must comply

with specified statutory criteria to maintain “self-insured”

status, ORS 656.005(25). Because the legislature has spec-

ified that notice of a claimant’s secondary employment be

given to the insurer, an assigned claims agent, or a self-

insured employer, the preexisting knowledge of the claim-

ant’s secondary employment of an employer like Adams &

Gray does not appear to be relevant to whether the claimant

may receive supplemental disability benefits.

The timeframe specified for notice in the stat-

ute lends additional support. For a claimant to be eligible

for supplemental disability benefits, the legislature has

Cite as 359 Or 736 (2016) 749

specified prompt notice of a claimant’s secondary employ-

ment: notice must be given to the designated entity

“[w]ithin 30 days of receipt of the initial claim.” ORS

656.210(2)(b)(A). The statute plainly establishes a time-

frame during which that information must be received by

the designated entity for a claimant to establish a supple-

mental disability claim, and that timeframe is tied to the

injured worker’s initial claim. That timeframe suggests that

the required notice to the insurer is part of the supplemen-

tal disability benefits claims process. Put simply, to be eli-

gible for the benefits, a claimant bears responsibility for the

insurer’s receipt of information relating to her secondary

employment within a 30-day window.

Claimant’s view of ORS 656.210(2)(b), though, does

not take into account the timing of notice and the appar-

ent connection between notice of secondary employment and

the claimant’s initiation of a workers’ compensation claim

described in the statute. In this case, the fact that two

supervisors at Adams & Gray had earlier become aware that

claimant had secondary employment was not, as a factual

matter, connected to claimant’s filing of her initial work-

ers’ compensation claim. In other words, at no point within

the 30-day window did claimant provide that information

to Liberty, and neither did she provide the information to

Adams & Gray in connection with her initial workers’ com-

pensation claim. In the absence of such a connection, claim-

ant’s contention that there was imputed notice to Liberty by

virtue of knowledge that Adams & Gray obtained at some

unknown earlier point disregards the timing requirement

of the statute. Claimant’s position leads to the conclusion

that the timing of Adams & Gray’s receipt of notice does not

matter, which seems contrary to the timing requirement in

the statute.

Although claimant acknowledges that the text

of ORS 656.210(2)(b)(A) favors the reading of it urged by

DCBS and ComPro, she maintains that the board’s reading

of ORS 656.210(2)(b)(A) is the better one based on a contex-

tual argument. As context, claimant relies on an employer’s

general duty to assist its insurer to process claims under

the workers’ compensation statutes, case law attributing

misconduct by an employer and imputing knowledge of an

750 DCBS v. Muliro

employer to a workers’ compensation insurer in other con-

texts, and principles of agency law. Claimant’s contextual

argument, though, fails to persuasively validate the board’s

reading of ORS 656.210(2)(b)(A).

Claimant employs two statutory provisions, ORS

656.017(1) and ORS 656.262(1), to argue that an employer’s

knowledge of an injured worker’s secondary employment

should be imputed to the employer’s insurer under ORS

656.210(2)(b)(A) based on an employer’s duty to process

claims. The first of those, ORS 656.017(1), provides:

“(1)  Every employer subject to this chapter shall main-

tain assurance with the Director of the Department of

Consumer and Business Services that subject workers of

the employer and their beneficiaries will receive compen-

sation for compensable injuries as provided by this chapter

and that the employer will perform all duties and pay other

obligations required under this chapter, by qualifying:

“(a)  As a carrier-insured employer; or

“(b)  As a self-insured employer as provided by ORS

656.407.”

(Emphasis added.) Claimant focuses on the emphasized part

of the provision, contending that ORS 656.017(1) imposes a

duty on an employer to perform all duties required under the

workers’ compensation statutes. But even if claimant’s read-

ing of the provision is correct—and ORS 656.017(1) is not

directed to some other purpose, such as a requirement that

the subject employer either obtain workers’ compensation

insurance or else provide workers’ compensation as a self-

insured employer—the provision begs the question whether

an employer like Adams & Gray was obliged to perform any

duty relating to notice of secondary employment.

In that regard, claimant notes that an employer

has a general obligation to assist its insurer pursuant to a

second statute, ORS 656.262(1): “All employers shall assist

their insurers in processing claims as required in this chap-

ter.” The statute does not define “processing.” And, because

we assume that the legislature intended to use that word

in its ordinary sense, we resort to dictionary definitions

to give that word its plain, natural, and ordinary mean-

ing. “Processing” means “to subject to rapid examination

Cite as 359 Or 736 (2016) 751

and handling designed to dispose of routine details” or “to

take care of, attend to, or dispose of by some largely rou-

tine procedure <quickly ~ed the loan request by the firm>.”

Webster’s at 1808 (emphasis in original). Thus, an employer

assists its insurers in processing claims by promptly exam-

ining and handling claims by “some largely routine pro-

cedure.” For purposes of ORS chapter 656, a “claim” is “a

written request for compensation from a subject worker or

someone on the worker’s behalf, or any compensable injury

of which a subject employer has notice or knowledge.”3 ORS

656.005(6). “Compensation” includes “all benefits, includ-

ing medical services, provided for a compensable injury to

a subject worker or the worker’s beneficiaries by an insurer

or self-insured employer pursuant to [chapter 656].” ORS

656.005(8) (emphasis added). Thus, by definition, a compen-

sable injury may result in a multi-faceted initial claim, i.e.,

the first or original work injury claim and, depending on the

circumstances, other related claims, or sub-claims, for ben-

efits such as the supplemental disability benefits at issue.4

We are persuaded that an employer has a duty

under ORS 656.262(1) to assist its insurer in processing

claims for supplemental disability benefits. Nevertheless, in

light of the text of ORS 656.210(2)(b)(A) and its context, as

discussed above, we are unpersuaded that the legislature

intended that any knowledge by the employer of a claim-

ant’s secondary employment, no matter how unconnected

that knowledge is to the claims process, must be imputed to

the employer’s insurer.

Claimant’s two other contextual arguments lack

merit. None of the three Court of Appeals decisions on which

claimant and the board have relied sheds light on the proper

interpretation of ORS 656.210(2)(b)(A) given the facts

3

ORS 656.003 provides that, “[e]xcept where the context otherwise requires,

the definitions given in this chapter govern its construction.”

4

“At one and the same time an injury can (and often does) give rise to com-

pensation ‘claims’ for * * * temporary total disability (ORS 656.210)[.]” Ohlig

v. FMC Marine & Rail Equipment, 291 Or 586, 599-600, 633 P2d 1279 (1981)

(Peterson, J., dissenting). Therefore, the word “claim” as used in chapter 656,

“illustrates the fact that although but one claim is made in the sense that but one

request for compensation is made under ORS chapter 656, the relief requested

may involve claims of many different kinds.” Id. at 600.

752 DCBS v. Muliro

presented in this case. In Anfilofieff and Nix, the reason-

ing the Court of Appeals employed reveals a basic formula:

unreasonable conduct by an employer designed to impede

the claims process plus an employer’s obligation to process

claims equals attribution of the employer’s misconduct to its

insurer in certain circumstances. We do not decide the valid-

ity of that formula, and we do not consider its applicability to

this case, because claimant does not advance that argument,

nor could she. Employer misconduct is absent from this case:

Adams & Gray promptly forwarded to Liberty claims-related

forms that claimant had herself completed without checking

boxes to indicate that she had other employers at the time of

her injury. The third case, Abbott, arose in a different con-

text and does not assist in the resolution of the question in

this case: whether the employer’s preexisting knowledge of

claimant’s secondary employment was sufficient to satisfy a

specific notice requirement in ORS 656.210(2)(b)(A).

And, claimant’s argument based on agency law

rests on an incorrect legal principle. Liberty, claimant

notes, is an agent of Adams & Gray. Claimant next asserts

that, as the result of “inverse imputation,” the knowledge

of Adams & Gray, the principal, was imputed to Liberty,

the agent. Claimant cites no authority for her novel the-

ory, and we know of no court that has recognized “inverse

imputation” as a principle of agency law. Knowledge of an

agent is imputed to the principal, not the other way around.

Under the common law of agency, it is presumed that an

agent always communicates to the principal all information

that it should communicate within the scope of the agency,

“although the agent does not, in fact, inform his principal

thereof.” Hogan v. Alum. Lock Shingle Corp., 214 Or 218,

228, 329 P2d 271 (1958). Thus, “notice to an agent is notice

to his principal.” State Farm Fire v. Sevier, 272 Or 278, 288,

537 P2d 88 (1975).

In sum, the text of ORS 656.210(2)(b)(A) and

the context of that provision indicate that the legislature

intended an injured worker seeking supplemental disability

benefits to bear the burden of providing notice of secondary

employment to the employer’s insurer. An injured worker’s

obligation can be met in multiple ways, including by the

Cite as 359 Or 736 (2016) 753

worker providing the information (such as by delivering a

completed claim form) directly to the insurer or to his or

her employer, who, because of a statutory claims processing

obligation, must transmit that information to its insurer.

In either of those scenarios, notice will not be imputed; the

insurer will receive actual notice.

C.  Legislative History

The parties also urge us to consider the legislative

history of ORS 656.210(2)(b)(A) to support their differing

views of the statute. We briefly address the legislative his-

tory, bearing in mind that the purpose of resorting to leg-

islative history is to aid the court in determining what the

legislature as an institution intended the statute to mean.

On that point, we echo the dissent in Errand v. Cascade

Steel Rolling Mills, Inc., 320 Or 509, 888 P2d 544 (1995),

identifying some of the pitfalls of relying too greatly on leg-

islative history: “In general, an examination of legislative

history is most useful when it is able to uncover the mani-

fest general legislative intent behind an enactment.” Id. at

539 n 4 (Graber, J., dissenting) (quoted in Gaines, 346 Or at

172-73 n 9). Other kinds of conclusions drawn from cherry-

picked quotations of single legislators or of nonlegislator

witnesses have to be carefully examined. See id. (Graber,

J., dissenting) (cautioning that reliance on “the beliefs of a

single legislator or witness” is “fraught with the potential

for misconstruction”).

With those principles in mind, we turn to the prof-

fered legislative history of ORS 656.210(2)(b). We conclude

that the testimony of the nonlegislator witnesses offered by

the parties is consistent with, but adds little to, the textual

analysis of the statute.

In 2001, the legislature enacted Senate Bill (SB)

485, which incorporated the statutory provision at issue in

this case. Or Laws 2001, ch 865, § 3. As introduced, the bill

proposed the creation of the supplemental disability benefit

and the procedures for obtaining the benefit. During consid-

eration of the bill, Jerry Keene, an appellate attorney spe-

cializing in appellate workers’ compensation law, testified

that

754 DCBS v. Muliro

“there’s * * * language [in Section 3 of SB 485 that] con-

notes a clear intent to basically set up a raise or waive situ-

ation. The worker has the opportunity to bring the fact that

they work two jobs to the employer within thirty days of the

injury. * * * But they do bear the responsibility to get this

information to the insurer in a timely manner.”

Tape Recording, Senate Committee on Business, Labor and

Economic Development, SB 485, Mar 14, 2001, Tape 49, Side

A (statement of Jerry Keene) (emphases added).

As the emphasized part of his testimony indicates,

Keene explained to the committee that the bill placed the

obligation on the worker to provide notice of secondary

employment. Keene’s testimony, as well as the rest of the

legislative history, indicates that workers “bear the respon-

sibility” for providing all the information necessary for

processing a supplemental disability claim. Id. Keene also

stated that diligence is crucial because “once the thirty day

window * * * comes and goes,” the opportunity to receive sup-

plemental benefits “will not be there anymore * * * and that

was fairly clear in the language [of Section 3].” Id.

Claimant emphasizes that Keene also stated that

the injured worker has the opportunity to bring the fact that

he or she works two jobs to the “employer.” Id. Claimant also

flags the testimony of a second nonlegislator witness, Jim

Egan, who similarly testified that “all an injured worker

would have to do would be to hand his or her pay-stub” from

the secondary employer to his or her “employer” or “insur-

ance carrier” for “proof enough that there was another job.”

Tape Recording, Senate Committee on Business, Labor

and Economic Development, SB 485, Feb 2, 2001, Tape 18,

Side A (statement of Jim Egan) (emphasis added). Claimant

urges us to conclude that the Keene and Egan testimony

demonstrates that the terms employer and insurer are

“interchangeable” for purposes of providing notice. We draw

a different conclusion, namely, that the proffered testimony

of Keene and Egan is consistent with our reading of ORS

656.210(2)(b)(A), which generally requires the injured

worker to direct information of his or her secondary employ-

ment to the insurer but which also allows the worker to give

the requisite information to the employer in connection with

the worker’s initial claim. In the latter case, the employer,

Cite as 359 Or 736 (2016) 755

because of its statutory obligation to process claims, will

then be obliged to transmit the information to the insurer.

Accordingly, we reject claimant’s contention that,

when an injured worker does not communicate to the insurer

or the employer within 30 days of the initial claim that she

or he has multiple employers, despite having the ability to

do so, the employer’s preexisting knowledge, unconnected to

the claims process, must be imputed to the insurer. Because

claimant did not communicate to Liberty or Adams & Gray

that she had secondary employment within 30 days of

Liberty’s receipt of her initial claim, which she could have

accomplished by checking the box relating to secondary

employment on either of two claims forms she filled out, and

Liberty did not otherwise receive actual notice of her sec-

ondary employment, the board erred in affirming the ALJ’s

order directing DCBS, through ComPro, to pay claimant

supplemental disability. Thus, we affirm the decision of the

Court of Appeals and reverse and remand the board’s order.

The decision of the Court of Appeals is affirmed. The

order of the Workers’ Compensation Board is reversed, and

the case is remanded to the board for further proceedings.