Stoltz v. Liberty Northwest Ins. Corp.

Under ORS 656.236(a)(1), a claim disposition agreement (CDA) waives or resolves all matters that could arise out of a claim, not just those currently known to arise out of the claim,with the exception of medical services, “unless those rights are expressly reserved.” Rash v. McKinstry Co., 331 Or 665, 20 P3d 197 (2001).

Claimant seeks judicial review of a final order by the Director of the Department of Consumer and Business Services (DCBS) that denied a request for attorney fees and penalties against insurer, Liberty Northwest (Liberty). Claimant assigned legal error to DCBS’s finding he had waived his rights to hold Liberty liable for fees and penalties for late payment of worker’s compensation under a claim disposition agreement (CDA). Claimant argued ORS 656.236 is silent on whether a CDA can act as a waiver of a right and that a CDA should not be read to waive rights to attorney fees and penalties because they are the only mechanism to enforce a CDA.  Liberty responded the claimant waived his right to attorney fees and penalties under ORS 656.236(1)(a), because a CDA waives all matters, not just currently known, that could arise out of the claim.  ORS 656.236(1)(a) provides: “Unless otherwise specified, a disposition resolves all matters and rights to compensation, attorney fees and penalties potentially arising out of claims, except medical services, regardless of the conditions stated in the agreement.” “A CDA waives all rights, other than to medical services, unless those rights are expressly reserved.” Rash v. McKinstry Co., 331 Or 665, 20 P3d 197 (2001). The Court of Appeals found the terms of the CDA to “closely mirror” ORS 656.236(1)(a) and that both unambiguously waives claimant’s rights to attorney fees and penalties for late payment of compensation. Affirmed.