Opinion
86-0673M; CA A42732
On respondent's motion to dismiss filed January 19, 1987.
Motion denied March 25, 1987.
Judicial Review from Workers' Compensation Board.
Ridgway K. Foley, Jr., Portland, for the motion.
Judith H. Uherbelau, Ashland, contra.
Before Young, Presiding Judge, and Warren and Deits, Judges.
PER CURIAM
Motion denied.
Claimant petitions for judicial review in a workers' compensation case from what is styled an "Own Motion Determination." Employer moves to dismiss the petition on the ground that a claimant may not have review of an own motion determination which does not diminish or terminate a former award. ORS 656.278(3).
Claimant sustained a compensable injury on September 25, 1980. A determination order was entered on May 18, 1981. On December 13, 1985, employer voluntarily reopened the claim as an aggravation. On December 4, 1986, employer moved for an own motion closure. The claim was closed on December 11, 1986, by the "Own Motion Determination," awarding claimant additional compensation.
Claimant's last award of compensation was on May 18, 1981, and the aggravation claim was timely. That was within five years after the last award, and claimant was entitled to have the claim closed pursuant to ORS 656.268. Her right to a hearing on that determination order is independent of the Board's own motion jurisdiction. See Owen v. SAIF, 77 Or. App. 368, 713 P.2d 628 (1986). The Board's order was, therefore, not an own motion order from which claimant may not seek review. ORS 656.278(2).
Motion to dismiss denied.