The opinion
WARREN, J.,
dissenting.
The issue in this case is whether there was a denied claim pursuant to ORS 656.386(1). Because I believe the Board was correct in holding there was not a denied claim, I dissent.
The majority opinion writes that “[t]his case is legally indistinguishable” from Kimberly Quality Care v. Bowman, 148 Or App 292 , 939 P2d 629 (1997). 152 Or App at 795. This is incorrect. The relevant facts of Kimberly Quality Care make it easily distinguishable from this case. In Kimberly Quality Care , the claimant specifically requested written acceptance or denial of her claim along with a notice of hearing. In response to that request, the insurer responded by denying that the claimant had sustained a work-related injury or disease. The Board held that “the insurer answered claimant’s request for hearing by denying her allegations on the express ground that these condition[s] are not compensable.” Emily M. Bowman, 48 Van Natta 1199, 2000 (1996). 1
We affirmed the Board’s order in Bozeman and wrote that insurer’s “notation on the response form was an express denial of the conditions on the ground that they were not related to the employment.” Kimberly Quality Care, 148 Or App at 295 (emphasis supplied). The majority opinion errs by holding that the notation “claimant is entitled to no relief’ suggests the same express denial embodied in the notation in *797 Kimberly Quality Care , which denied that the claimant had sustained a work-related injury or disease. This error becomes more apparent from the precise wording of ORS 656.386(1), which provides:
“For purposes of this section, a ‘denied claim’ is a claim for compensation which an insurer or self-insured employer refuses to pay on the express ground that the injury or condition for which compensation is claimed is not compensable or otherwise does not give rise to an entitlement to any compensation.” (Emphasis supplied.)
Pursuant to this definition, a denied claim requires three components: (1) a claim; (2) refusal to pay compensation; and (3) an express denial. In its opinion, the majority fails to explain what an “express denial” is. “Express,” in this context, means “directly and distinctly stated or expressed rather than implied or left to inference: not dubious or ambiguous.” Webster’s Third New Int'l Dictionary 803 (unabridged ed 1993) (emphasis supplied). In other words, an express denial is a denial that is directly and distinctly stated and not implied or ambiguous. Thus, the majority opinion necessarily holds that SAIF’s notation on the hearing response form, “claimant is entitled to no relief,” directly and distinctly (expressly) states SAIF’s intent to refuse payment because the claim is not compensable or otherwise does not give rise to an entitlement to any compensation. Because I find SAIF’s statement “ambiguous” and certainly not “express,” I disagree.
The notation involved here has two possible, and plausible, interpretations. “[C]laimant is entitled to no relief 1 ’ could mean that SAIF intended to deny the claim on the ground that claimant’s fractured femur is not compensable or otherwise does not give rise to an entitlement to compensation; or, it could mean that, because SAIF had paid all of claimant’s benefits under his paraplegia claim, there was nothing additional SAIF was then required to do to fulfill its obligations under the law. Both constructions are reasonable and ultimately create an ambiguity. That ambiguity, pursuant to ORS 656.386(1), should require this court to hold that it was not an express denial. Significantly, the notation in Kimberly Quality Care was not ambiguous and could only be interpreted to be an express denial.
*798 Additionally, the majority opinion inadequately addresses the Board’s finding: “There is no evidence in this record that SAIF ‘refused to pay’ any compensation.” The record indicates that up to the time of hearing the insurer had paid all of claimant’s medical bills. 2 The majority opinion, however, says that the notation “claimant is entitled to no relief’ carries with it an implicit refusal to pay compensation in the future. 152 Or App at 795. That argument begs the question. If the notation constitutes a denied claim, then it certainly implies a refusal to pay compensation in the future. But as I have said, given the different inferences that can be drawn from the undisputed facts, there is substantial evidence that supports the Board’s conclusion that what occurred in this case did not constitute an express denial.
Here, the evidence before the Board was that SAIF had paid all of the claimant’s medical bills but had written “claimant is entitled to no relief’ on a response to hearing form. Nothing in the record indicates that SAIF questioned the causation of the injury or expressly questioned its compensability. Cf. Kimberly Quality Care, 148 Or App at 294-95 . Additionally, nothing was owing to claimant at the time the notation was written. The notation is capable of an understanding consistent with a denial or of a description of the present status of claimant’s rights. The notation was in the present tense and literally did not address the future at all. On these facts, the Board did not err in finding that SAIF did not refuse to pay compensation in the future. The majority opinion errs in not addressing the Board’s findings on this issue.
Because there is substantial evidence in the record to show that SAIF did not refuse to pay any compensation to claimant, and because this record does not indicate an express denial, I dissent.
Haselton, J., joins in this dissent.
The Board distinguished the different result from its earlier decision in this case:
“We find this case distinguishable from Michael J. Galbraith, 48 Van Natta 351 (1996). In Galbraith, the carrier responded to the claimant’s request for hearing by asserting that the worker was ‘entitled to no relief.’ Because there was no refusal to pay compensation on the express ground that the condition was not compensable or that claimant was not otherwise entitled to compensation, there was no ‘denied claim’ as required by ORS 656.386(1). Here, in contrast, the carrier’s response to the request for hearing expressly denied that claimant had sustained a work-related injury or disease. Because the carrier’s response in this case constitutes a refusal to pay compensation on the express ground that the condition is not compensable, it is a ‘denied claim’ within the meaning of ORS 656.386(1).” Emily M. Bowman, 48 Van Natta 1199, 2000 n 2.
The majority opinion asserts that there is no significance in SAIF’s payments and that there is a “legislative directive depriving the payment of medical bills of any significance.” 152 Or App at 794. The majority opinion cites ORS 656.262(10) as support. However, that section simply provides that payment of compensation, by itself, shall not be considered an acceptance of a claim. That statute certainly does not foreclose the Board’s ability to consider the payment of medical bills when examining the record to determine whether the insurer had refused to pay compensation.