Weems v. American International Adjustment Co.

DURHAM, J.,

concurring.

I concur with the majority’s holding that the Board is not obligated to defer, or accord particular evidentiary weight, to the opinion of a settlement judge about the reasonableness of a settlement that the Board reviews under ORS 656.587.1.findno statutory basis for such an obligation, and we cannot impose one on the basis of our own policy predilections.

In addition, I also concur in the rejection of claimant’s substantial evidence argument. The amount of the consortium claim settlement, and the testimony of a lawyer regarding the relationship of a consortium claim’s value to the value of the injured party’s claim, support a rational finding that claimant’s settlement was “grossly unreasonable.”

Although I agree with the court’s answer to the narrow questions that the petition for review presents, I write separately to explain more completely the basis for my concurrence. On the record and briefs before us, the court correctly avoids discussing the Board’s failure to interpret ORS 656.587, to define its “grossly unreasonable” standard, and to explain rationally how its findings support its conclusion that claimant’s settlement was grossly unreasonable. In the absence of some definition or explanation, the Board’s “grossly unreasonable” standard begs the legal question: “Grossly unreasonable, as compared to what?” That question, in turn, requires an inquiry, which the majority does not undertake, as to whether the Board’s standard directs and *148 confines the Board’s settlement review in a manner that is consistent with the general legislative policy underlying ORS 656.587. The order does not explain why the Board’s authority, under ORS 656.587, to approve "[a]ny compromise by the worker * * * of any right of action against an employer or third party” permits it to disapprove claimant’s settlement, which he negotiated, according to the settlement judge, in the context of a probable defense verdict, because his wife received more in settlement of her consortium claim. The order is all the more puzzling, because the Board said that, in reviewing this settlement under ORS 656.587, “this Board is without authority to consider such a [consortium] dispute.”

The Board’s failure to interpret the statute, or to explain rationally why its findings lead to its legal conclusion, may deprive the order of “substantial reason,” Springfield Education Assn. v. School Dist., 290 Or 217, 228 , 621 P2d 547 (1980), and interfere with effective judicial review, Ross v. Springfield School Dist. No. 19, 294 Or 357, 370 , 657 P2d 188 (1982). See also Williams v. SAIF, 310 Or 320, 329 , 797 P2d 1036 (1990) (Unis, J., specially concurring) (stating reasons for the requirement of a rational explanation of the basis for an agency’s order). The Board cannot evade its responsibilities to interpret statutes and rules and to explain rationally why its interpretation and findings lead to its legal conclusion, even though the Board’s authority to approve settlements is quite broad. Compliance by the Board with those responsibilities is not an act of grace. See Dickinson v. Davis, 277 Or 665, 674 , 561 P2d 1019 (1977) (describing the importance to judicial review of a proper agency order when the agency makes a discretionary decision pursuant to broad statutory authority). However, we cannot reach and decide those discrete legal issues under claims that the Board is required to defer to the opinion of the settlement judge, and that substantial evidence does not support the order.

Because the majority correctly resolves the issues stated in the petition, I concur.

Unis, J., joins in this concurring opinion.