AGGRAVATION:
NOT "SURGERY-RELATED" WORSENING -
REVIEW NOT DEFERRED
In Kelly J. Clay, 48 Van Natta 911 (April 24, 1996), the Board held that claimant's aggravation claim was compensable under ORS 656.273(1) because claimant's compensable condition had "pathologically" worsened. Several years after closure of claimant's cervical claim, a carrier denied his aggravation claim. Citing Carmen C. Neill, 47 Van Natta 2371 (1995), the Board reiterated that claimant must establish an "actual worsening" of the compensable condition, which was established by either a pathological worsening of the underlying condition or by a symptomatic worsening of the condition that was greater than anticipated by the prior permanent disability award.
Applying Neill, the Board concluded that there had been an "actual worsening" because claimant's condition had pathologically worsened. Specifically, the Board relied on claimant's treating physician's opinion, as supported by radiologic studies, which confirmed that claimant was experiencing progressive discogenic changes in his cervical spine. In reaching this conclusion, the Board acknowledged that a surgery dispute (arising from a managed care organization) remained unresolved. Had the aggravation issue been expressly contingent on resolution of the surgery dispute, the Board noted that it would likely have deferred action regarding the merits of the aggravation claim. See Lisa L. Daulton, 48 Van Natta 273 (1996). However, since claimant's aggravation claim was not expressly contingent on resolution of the surgery dispute, the Board considered it appropriate to proceed with its review.
AGGRAVATION:
SYMPTOMATIC WORSENING -
MORE THAN "WAXING/WANING"
EVIDENCE NOT LIMITED TO "A.P."
In Helen K. Lara, 48 Van Natta 469 (February 29, 1996), on remand from the court for reconsideration in light of SB 369, the Board held that, in determining the compensability of an aggravation claim, there is no statutory limitation concerning the medical evidence that may be considered. Based on claimant's attending physician's opinion (which found that claimant's reduced range of motion represented a symptomatic worsening that was not simply a waxing and waning of her compensable low back condition), the Board concluded that claimant's compensable condition had "actually worsened" as required by amended ORS 656.273(1) and ORS 656.214(7). See Carmen C. Neill, 47 Van Natta 2371 (1995).
In reaching its conclusion, the Board acknowledged that in its previous decision, 46 Van Natta 2443 (1994), it had declined to consider a consulting physician's opinion regarding whether claimant's prior permanent disability award contemplated future waxing and waning of symptoms. The Board noted that such a conclusion had been based on the statutory requirement that only findings from, or ratified by, a worker's attending physician could be considered in evaluating a worker's disability. However, reasoning that, pursuant to ORS 656.214(7), all permanent disability awards are deemed to contemplate future waxing and waning of symptoms, the Board concluded that the "attending physician" limitation for claim closure evaluations was no longer relevant because no "contemplation" determination was necessary. Instead, the Board stated that it would follow the usual methods of gauging the persuasiveness of a particular medical opinion such as whether the opinion was based on a complete and accurate history and was well reasoned.
AGGRAVATION:
SYMPTOMATIC WORSENING -
"PRE-369" RECORD -
NO "CONTEMPLATION" EVIDENCE - REMAND
In Elizabeth K. Benjamin, 48 Van Natta 798 (April 10, 1996), the Board held that it was appropriate to remand claimant's aggravation claim for further development because the record had been developed / closed prior to the retroactive application of the "actual worsening" standard of amended ORS 656.273(1) and the record did not indicate that claimant's prior permanent disability award had contemplated "waxing and waning." Finding that there was no medical evidence that claimant's compensable condition had pathologically worsened, the Board identified the issue as whether claimant's symptomatic worsening constituted an "actual worsening," i.e., more than a waxing and waning of symptoms contemplated by her prior 16 percent unscheduled permanent disability award. The Board cited Carmen C. Neill, 47 Van Natta 2371 (1995).
The Board found that the record neither indicated that claimant's prior permanent disability award had contemplated future flare-ups nor that the carrier had contended the flare-ups constituted an anticipated "waxing and waning" of symptoms. Citing Lucas v. Clark, 106 Or App 687 (1991), the Board noted that under former ORS 656.273(1) medical evidence of such contemplation was required. Inasmuch as the record had been developed / closed prior to the adoption of amended ORS 656.273(1) and since such contemplation of "waxing and waning" symptoms was statutorily presumed, the Board concluded that there was a compelling reason to remand for further development of the record regarding the new "actual worsening" standard.
In reaching its conclusion, the Board distinguished Aurora M. Arevalo, 48 Van Natta 517 (1996), and Solio C. Diaz, 48 Van Natta 371 (1996). In Arevalo, the Board stated that remand was not appropriate for further development regarding the "actual worsening" requirement because the hearing had been held after amended ORS 656.273(1) became applicable. Although the record in Diaz had been developed prior to enactment of amended ORS 656.273(1), the Board noted that remand was not necessary in that case because the record already contained evidence concerning whether the claimant's symptomatic worsening exceeded the waxing and waning contemplated by a prior permanent disability award.
AGGRAVATION CLAIM:
NOT FROM "MEDICAL ARBITER"
In Melvin L. Shroy, 48 Van Natta 561 (March 15, 1996), the Board held that a medical arbiter's report was insufficient to constitute an aggravation claim under amended ORS 656.273(3). Noting that the medical arbiter was not claimant's attending physician, the Board reasoned that the arbiter's report could not constitute an aggravation claim. The Board relied on Donald P. James, 48 Van Natta 424 (February 22, 1996), which had held that a chiropractor's report was insufficient to establish an aggravation claim under amended ORS 656.273(3) because the chiropractor was ineligible to serve as an attending physician under amended ORS 656.005(12)(a)(B).
Finally, the Board found claimant's attending physician's report insufficient to perfect an aggravation claim. Although the report referred to numbness in claimant's foot related to his compensable injury, the Board concluded that the physician did not address whether such symptoms represented a worsening of claimant's compensable condition as required by amended ORS 656.273(3).
ATTORNEY FEES ("307(5)"):
"ACTIVELY AND MEANINGFULLY PARTICIPATES" - LONGER "AGGRAVATION
RIGHTS"
In Shelley C. Nikolaus, 48 Van Natta 750 (April 3, 1996), the Board held that claimant was entitled to a carrier-paid attorney fee under ORS 656.307(5) when her counsel argued that a carrier with a claim with longer aggravation rights was responsible. The "307" hearing involved responsibility for claimant's cervical condition between two carriers with previously accepted claims. Although claimant's temporary total disability (TTD) rate under the first carrier's claim was higher, her aggravation rights under the second carrier's claim were longer. At the hearing, claimant successfully argued that responsibility should rest with the second carrier.
Citing Darrell W. Vinson, 47 Van Natta 356 (1995), the Board determined that claimant's participation was "active" in that she had advocated a position regarding the responsibility issue. The Board further concluded that such participation was "meaningful" in that the longer period of "aggravation rights" under the second claim was a "material, substantial interest" since claimant would have a longer opportunity to qualify for benefits under ORS 656.273. In reaching its conclusion, the Board reasoned that each particular set of circumstances must be evaluated to determine whether the position taken by a claimant's counsel satisfies the statutory prerequisite of "active and meaningful" participation. In this regard, the Board noted that there may well be circumstances other than a higher TTD rate or longer aggravation rights which will satisfy the "material, substantial interest" standard.
Board Member Haynes dissented. Stating that claimant's attorney's participation essentially consisted of providing a closing argument, Haynes contended that such conduct simply was too minimal to be "active." Furthermore, reasoning that longer aggravation rights merely provided the opportunity to prove entitlement for potential for additional benefits not available under ORS 656.278, Haynes argued that such circumstances did not make an attorney's participation "significant" and "purposeful" and, thus, "meaningful." Finally, asserting that the legislature clearly intended that a "307(5)" attorney fee would not be freely required, Member Haynes concluded that the majority's decision had essentially deleted the requirement of "active and meaningful participation."
ATTORNEY FEES:
CARRIER NEGLECTS TO PAY "OUT-OF-COMP"
"OVERPAYMENT" REQUIRED
In Clancy Whitten, 48 Van Natta 596 (March 22, 1996), the Board held that, when a carrier had paid disputed temporary disability compensation to claimant even though it had notice of his legal representation, the carrier was required to pay an "out-of-compensation" attorney fee directly to claimant's counsel with authorization to recover the "overpayment" from claimant's future compensation. Claimant, through his attorney, requested Board review of a carrier's Notice of Own Motion Claim Closure. A copy of the request, as well as a copy of an executed retainer agreement, were provided to the carrier. Thereafter, the carrier issued a Corrected Notice of Closure, awarding claimant the additional temporary disability he had been seeking. All of the additional temporary disability benefits were paid to claimant.
Relying on SAIF v. O'Neal, 134 Or App 338 (1995), the Board concluded that the carrier was required to pay the "out-of-compensation" fee directly to claimant's attorney because his counsel had taken all appropriate measures designed to secure recovery of that fee and had not received that fee due to the carrier's unnecessary and unilateral action. In reaching its conclusion, the Board reexamined the O'Neal rationale in light of amended ORS 656.386(2) and Volk v. America West Airlines, 135 Or App 565 (1995).
As with its current version ("attorney fees shall be paid from the increase in the claimant's compensation"), the Board noted that former ORS 656.386(2) ("attorney fees shall continue to paid from the claimant's award of compensation") mandates that "out-of-compensation" attorney fees must be paid from a claimant's compensation. Since the O'Neal holding recognizes that the claimant's counsel's fee is payable from a claimant's compensation, the Board reasoned that the O'Neal principle has not been eliminated by the amendments to ORS 656.386(2). In other words, the Board reiterated the O'Neal proposition that the statute should not be read to preclude the Board from ordering a carrier to pay the "out-of- compensation" attorney fees directly to the attorney when the carrier's unnecessary and unilateral action makes the additional award necessary. SAIF v O'Neal, supra, 134 Or App at 343.
ATTORNEY FEES:
"DENIED CLAIM" - "386(1)" -
NOT FOR UNTIMELY- PAID CLAIM EXPENSES
In Gayle J. Williams, 48 Van Natta 892 (April 18, 1996), the Board held that claimant was not entitled to a carrier-paid attorney fee under amended ORS 656.386(1) when the carrier neglected to timely provide reimbursement for mileage and expense vouchers. Noting that it was undisputed that the reason such compensation was untimely paid was because the receipts for such expenses had been misplaced by the carrier, the Board concluded that there had been no "refusal to pay" on the express ground that claimant's injury was not compensable or otherwise did not give rise to an entitlement to compensation. Relying on ORS 656.386(1) and Michael J. Galbraith, 48 Van Natta 351 (1996), the Board determined that there had been no "denied claim" and, as such, there was no entitlement to a carrier-paid attorney fee.
Although the carrier's claim processing error had formed the basis for a penalty under ORS 656.262(11) for unreasonable conduct, the Board reasoned that such conduct did not establish a "denied claim" as required by ORS 656.386(1). Finally, the Board rejected claimant's contention that the amendments to ORS 656.386(1) should not be retroactively applied because they allegedly changed a procedural time limit. Finding nothing in the language of the statute that affected any time limitation in any other statute, the Board concluded that amended ORS 656.386(1) was retroactively applicable. See SB 369; Section 66(6).
ATTORNEY FEES:
FAILURE TO CONCEDE COMPENSABILITY - NOT "DENIED CLAIM" UNDER "386(1)"
In Donald P. James, 48 Van Natta 563 (March 18, 1996), the Board held that a carrier's failure to concede the compensability of a claim did not constitute a "denied claim" under amended ORS 656.386(1) because the carrier had not refused to pay compensation on the express ground that the claimed injury or condition was not compensable or otherwise did not give rise to entitlement to any compensation. In denying responsibility for a claim, a carrier announced that it had requested the designation of a paying agent under ORS 656.307. Although the carrier's denial had been entitled a "denial of your claim for benefits," included "notice of hearing" provisions, and had not conceded the compensability of the claim, the Board found that the carrier had neither contended that the claim was not compensable nor that claimant was not entitled to compensation.
Under such circumstances, the Board concluded that neither the carrier's denial nor its conduct at hearing had raised a compensability issue. Reasoning that claimant's claim did not constitute a "denied claim," the Board concluded that claimant was not entitled to a carrier-paid attorney fee under ORS 656.386(1) for prevailing over the denial. Instead, the Board determined that claimant was entitled to an attorney fee under amended ORS 656.308(2)(d) for finally prevailing against a responsibility denial.
The Board also concluded that claimant was not entitled to an attorney fee under amended ORS 656.386(1) against another carrier who had neither denied the claim nor conceded compensability. Asserting that the first carrier had been found responsible for claimant's condition pursuant to a prior ALJ's order, the other carrier had moved for its dismissal from the proceeding. Although the carrier's failure to respond to the claim entitled claimant to a penalty for the carrier's unreasonable claim processing, the Board reasoned that such conduct did not equate to a denial on the "express ground" that claimant's condition was not compensable or otherwise did not give rise to an entitlement to compensation.
Board Chair Hall specially concurred. Referring to his dissenting opinion in James D. Lollar, 47 Van Natta 740 (1995), Hall reiterated that, to avoid liability for an attorney fee award under ORS 656.386(1), a carrier's denial must very clearly concede compensability. Based on that standard, Chair Hall emphasized that, given its language, the first carrier's denial had contained an express concession of compensability.
ATTORNEY FEES:
RESCISSION OF "AGG" DENIAL
In Vickie M. Emerson, 48 Van Natta 821 (April 10, 1996), the Board held that claimant was entitled to a carrier-paid attorney fee under amended ORS 656.386(1) when a carrier rescinded its aggravation denial prior to a scheduled hearing. Within one year of an accepted nondisabling injury, claimant contended that her compensable condition had worsened. Rather than referring the claim to the Director as a request for reclassification under ORS 656.277(1), the carrier issued a denial of an aggravation claim. Thereafter, claimant requested a hearing. When the carrier withdrew its denial shortly before the scheduled hearing, claimant sought an attorney fee award pursuant to ORS 656.386(1).
Reasoning that claimant's counsel had been instrumental in obtaining a rescission of the denial prior to an ALJ's decision, the Board determined that a carrier-paid attorney fee was appropriate. In reaching its conclusion, the Board acknowledged that, in Mindi M. Miller, 44 Van Natta 1671, on recon 44 Van Natta 2144 (1992), a carrier-paid attorney fee under former ORS 656.386(1) had not been awarded under similar circumstances. However, the Board determined that the former statute required an attorney to be instrumental in "obtaining compensation," whereas the current version requires a claimant's attorney to be "instrumental in obtaining a rescission of the denial prior to a decision." Finding no requirement that a denial be validly issued or that a claimant "prevail" where there has been a "rescission" of a denial prior to an ALJ's decision, the Board identified the crucial inquiry as whether there was a "denied claim" and whether there was a "rescission."
Noting that it had not contested the causal relationship between claimant's compensable injury and her current condition, the carrier argued that there had been no "denied claim." The Board disagreed. Reasoning that an aggravation claim potentially involves temporary and permanent disability, the Board concluded that an aggravation denial constitutes a "denied claim" because the carrier is refusing to pay compensation on the express ground that the claim "did not give rise to an entitlement to any compensation." The Board cited Fidel D. Chavez, 43 Van Natta 2515 (1991).
ATTORNEY FEES ("382(2)"):
SUCCESSFUL DEFENSE -
PART OF ALJ COMPENSABILITY ORDER
In Laura Maderos, 48 Van Natta 838 (April 10, 1996), the Board held that claimant was entitled to a carrier-paid attorney fee for her counsel's services on review when the attorney successfully defended one of two disputed conditions on review. A carrier had appealed an ALJ's order which had found two disputed conditions to be compensable. On review, the Board found one of the two conditions compensable and reduced the ALJ's attorney fee award. Claimant requested reconsideration, seeking a carrier-paid attorney fee under ORS 656.382(2) for successfully defending the compensability of one of the disputed conditions.
Since the carrier's denial of one of the disputed conditions had been reinstated, the Board acknowledged that claimant's overall compensation may have been reduced. Nevertheless, reasoning that each disputed condition had been considered separately and that the compensation for the compensable condition had not been reduced, the Board concluded that claimant was entitled to a carrier-paid attorney fee for her counsel's services on review regarding that particular condition. The Board cited Debra Cooksey, 44 Van Natta 2102, on recon 44 Van Natta 2197, 2198 (1992).
CLAIM PRECLUSION:
NOT CONTESTING ANOTHER CARRIER'S ACCEPTANCE
In Dwight M. Page, 48 Van Natta 849 (April 10, 1996), the Board held that claimant was precluded from contesting a carrier's denial of his occupational disease claim for bilateral carpal tunnel syndrome because he had not contested another carrier's acceptance of his claim for the same condition. Prior to a hearing regarding claimant's appeal of the carrier's denial, another carrier accepted claimant's claim for the same condition. Nevertheless, claimant sought to proceed with the hearing to overturn the carrier's compensability denial and receive a carrier-paid attorney fee under ORS 656.386(1).
Noting that claimant was not dissatisfied with the other carrier's acceptance and was not contending that the carrier was responsible for his claim, the Board determined that claimant was precluded from proceeding against the carrier's denial. In reaching its conclusion, the Board distinguished Geraldine M. Bradshaw-Coe, 43 Van Natta 518 (1991), and Karen L. Nichols, 41 Van Natta 2414 (1989), where the claimants had been entitled to contest denials because they had not been satisfied with another carrier's acceptance of their claims for the same condition.
CLAIM PROCESSING: "262(6)(d)"
-
OBJECTION TO ACCEPTANCE -
APPLIES TO "POST-ORDER" ACCEPTANCE
In Rodrick L. Cotner, 48 Van Natta 556 (March 15, 1996), the Board held that the "objection to Notice of Claim Acceptance" provisions of amended ORS 656.262(6)(d) are also applicable to a "post-order" acceptance. Noting that a prior litigation order had found his low back injury claim compensable, claimant contended that the carrier's "post-order" acceptance of a low back strain constituted a "de facto" denial of his L1-2 disc herniation. Although the carrier amended its notice to include the disc herniation within 30 days of his objection, claimant asserted that ORS 656.262(6)(d) had no application to a "post-order" acceptance.
The Board disagreed. Since the statute expressly and unequivocally applies to objections to a "notice of acceptance," the Board found no exception for acceptance notices issued as a result of a litigation order. Inasmuch as the carrier had amended its notice of acceptance within 30 days of claimant's objection, the Board concluded that the amendment was timely under amended ORS 656.262(6)(d).
Turning to claimant's request for an attorney fee award, the Board determined that there had not been a "denied claim" within the meaning of amended ORS 656.386(1). Reasoning that the carrier had timely amended its acceptance notice and had not questioned the compensability of the disc herniation prior to or at the hearing, the Board held that the carrier had not refused to pay compensation for the disc herniation on the express ground that the condition was not compensable or otherwise did not give rise to entitlement to any compensation.
EXTENT ("268(7)(a)"):
MEDICAL ARBITER - DIRECTOR DISCRETION TO APPOINT
In Sharon M. Sessions, 48 Van Natta 901 (April 19, 1996), the Board held that the Director was authorized to appoint a medical arbiter even though no party had disputed claimant's permanent impairment findings. Citing Flor Irajpanah, 47 Van Natta 189 (1995), the Board noted that, under former ORS 656.268(5) and (7), the Director lacked authority to appoint a medical arbiter if the parties did not disagree with the impairment used in rating disability.
Nonetheless, unlike Irajpanah, the Board noted that the case at hand was controlled by amended ORS 656.268(7). Pursuant to that section, the Board concluded that the Director now has discretion to refer a claim to a medical arbiter to obtain additional medical information when the submitted medical evidence was insufficient to rate disability, even though the parties did not disagree with the attending physician's impairment findings.
EVIDENCE ("283(7)"):
"RECON" RECORD -ADMISSIBLE EXHIBITS - MENTIONED IN "EXPLANATORY
NOTES"
In Roberto Garcia, 48 Van Natta 879 (April 10, 1996), the Board held that some disputed medical reports and a carrier's denial were admissible at a hearing concerning an Order on Reconsideration under ORS 656.283(7) because the evidence established that the reports had been part of the Department's "reconsideration record." At a hearing regarding the extent of claimant's low back permanent disability, a carrier sought to admit a medical report from a consulting physician, a concurrence report from claimant's attending physician, and its denial of a bulging disc. Over claimant's objection that the exhibits were inadmissible under ORS 656.283(7), the ALJ admitted them into evidence.
The Board affirmed. Noting that each of the disputed exhibits had been referred to in the Appellate Reviewer's "explanatory notes" that accompanied the Order on Reconsideration, the Board concluded that the exhibits were included in the Department's "reconsideration record" and, as such, were admissible at hearing pursuant to ORS 656.283(7).
EVIDENCE ("283(7)"):
"RECON" RECORD - PARTIES' RESPONSIBILITY TO PRESENT
In Juan C. Rodriguez, 48 Van Natta 762 (April 8, 1996), the Board held that remand to the Department's Appellate Review Unit (ARU) was not warranted when the requesting party had not shown due diligence in attempting to obtain the Department's "reconsideration record" at the hearing. Contending that the record regarding his request for permanent disability was inadequately developed due to the absence of the Department's "reconsideration record," claimant sought remand to the ARU.
The Board rejected claimant's request. First, to the extent claimant's request could be construed as a motion for postponement / continuance of the hearing, the Board found no due diligence by claimant in attempting to obtain the Department's "reconsideration record" prior to the hearing. In reaching this conclusion, the Board noted that ORS 656.283(7) provides that it is the worker, insurer, or self-insured employer who are not limited in "presenting" the reconsideration record at the hearing.
Second, to the extent that claimant was seeking remand to the Department (assuming without deciding that the Board had such authority), the Board not only found no evidence that the reconsideration record had been unobtainable with the exercise of due diligence, but it also found no compelling reason. On this latter point, the Board found that, based on explanations accompanying the Order on Reconsideration, it was apparent that reports from claimant's attending physicians which were admitted exhibits at the hearing were part of the "reconsideration record." In addition, the Board noted that claimant had not referred to any specific evidence in the "reconsideration record" that might affect the outcome of the case.
EXTENT:
"RECON" PROCEEDING -
"UNRELATED WORSENING" -
"RECORD REVIEW" APPROPRIATE
In Brian A. Bergrud, 48 Van Natta 802 (April 10, 1996), the Board held that, when evaluating claimant's permanent disability during a reconsideration proceeding, the Department was authorized to schedule a "record review," rather than a requested medical arbiter examination, when there had been a "subsequent unrelated worsening" as set forth in former OAR 436-30-165(5). While claimant's request for reconsideration and appointment of a medical arbiter examination for his compensable low back condition was pending, he suffered knee and collar bone injuries in an off-work accident. Although claimant notified the Appellate Review Unit (ARU) that he intended to keep his appointment with the medical arbiter, the carrier submitted a medical report from the physician treating claimant's knee injury which recommended that the exam be postponed because it would be affected by the "off-work" injuries. Thereafter, the ARU scheduled a "record review" based on claimant's compensable injury-related impairment.
Noting that ORS 656.268(7)(h)(B) had become retroactively effective, the Board first considered whether the reconsideration proceeding should have been postponed. Since all of the parties had not consented to the postponement of the proceeding, the Board determined that the statute was not applicable.
Turning to former OAR 436-30-165(5), the Board found no support for claimant's contention that the rule's reference to a "subsequent unrelated worsening" referred only to a worsening of the compensable condition. Reasoning that the statutory scheme (ORS 656.214(2) & (5)) requires that impairment is rated according to the permanent disability due to the compensable injury, the Board concluded that a record review would satisfy those requirements. Inasmuch as the unrebutted medical evidence established that a worsening of an unrelated noncompensable condition would affect the medical arbiter's ability to rate claimant's permanent disability due to his compensable condition, the Board held that a "record review" was appropriate.
MEDICAL TREATMENT:
WEIGHT LOSS PROGRAM -
CAUSATION DISPUTE -
JURISDICTION - BOARD
In Warren N. Bowen, 48 Van Natta 883 (April 17, 1996), the Board held that it retained jurisdiction under ORS 656.245(6) to resolve a dispute regarding the causal relationship between claimant's compensable right foot injury and a proposed weight loss program. Noting that it was not contesting the compensability of claimant's accepted foot condition, the carrier contended that no dispute regarding the compensability of an "underlying claim" existed as required by ORS 656.245(6).
The Board disagreed. Reasoning that the dispute involved either a "consequential" or "combined" condition (claimant's "post-injury" weight gain), the Board concluded that the carrier's denial (based on a contention that the weight loss program was not causally related to claimant's compensable condition) contested the compensability of the "underlying claim." Relying on Richard Wheeler, 47 Van Natta 2011 (1995), Lynda J. Zeller, 47 Van Natta 1581 (1995), and Janet Anderson, 47 Van Natta 1692 (1995), the Board held that jurisdiction over the causation issue rested with its Hearings Division.
MOTION TO DISMISS:
"308(2)(c)" - N / A FOR COMPENSABILITY DENIAL
In Ernest L. Chavez, 48 Van Natta 529 (March 11, 1996), the Board held that the "motion to dismiss" provision in ORS 656.308(2)(c) was not applicable to a carrier who had issued a compensability denial and had not conceded compensability prior to the proceeding. Claimant requested a hearing concerning an "aggravation" carrier's responsibility denial and a "new injury" carrier's compensability / responsibility denial. Asserting that there was no substantial evidence to support a finding of responsibility against it, the "new injury" carrier moved for its dismissal. Finding that claimant did not sustain a new injury or increased symptoms during his employment with the "new injury" employer, the ALJ dismissed the "new injury" carrier pursuant to ORS 656.308(2)(c).
The Board reversed the ALJ's dismissal order. Based on the text of ORS 656.308(2)(c), the Board noted that the statute does not refer to findings of compensability or compensability denials. Turning to the context of the statute, the Board pointed out that subsections (a), (b), and (d) all focus on responsibility issues. Finally, the Board found no reference in ORS 656.308 or elsewhere in Chapter 656 to a procedure for dismissing a hearing request on the basis that the record does not contain substantial evidence to support a finding of compensability. Under such circumstances, the Board concluded that the dismissal procedures of ORS 656.308(2)(c) apply only to responsibility issues.
The Board also reiterated that compensability must be proved as a threshold to responsibility and that, unless a carrier concedes compensability, claimant has the burden of proving compensability. The Board cited ORS 656.005(7), 656.266, 656.802, and Joyce A. Crump, 47 Van Natta 466 (1995). In this regard, the Board noted that if the "new injury" carrier had conceded compensability, it would be appropriate to consider its dismissal from the proceeding under ORS 656.308(2)(c). However, the Board found that the "new injury" carrier had not conceded the compensability of the claim. Inasmuch as no hearing was convened and since the parties had not had an opportunity to litigate the compensability of the claim, the Board remanded the case to the ALJ for further proceedings.
"NCE" ALJ DECISION:
APPELLATE REVIEW AUTHORITY
In Trisha Clarke, NCE, 48 Van Natta 505 (March 6, 1996), the Board held that it lacked appellate review authority over an appeal from an ALJ's order arising from an alleged employer's hearing request from a Noncomplying Employer (NCE) order. Noting that neither the alleged employer nor the SAIF Corporation had challenged the compensability of claimant's injury claim, the Board reasoned that no hearing request had raised a matter concerning a claim. Citing ORS 656.740(3)(c), Miller v. Spencer, 123 Or App 635 (1993), Ferland v. McMurty Video Productions, 116 Or App 405 (1992), and Ace Tree Company, 46 Van Natta 1067, 1068 (1994), the Board held that the ALJ's order (which had affirmed the NCE order and declined to award penalties and attorney fees) did not result from a hearing in which the noncompliance issue was consolidated with a matter concerning a claim.
In reaching its conclusion, the Board distinguished Hayes v. SAIF, 132 Or App 455 (1995), which had reversed a Board order that had dismissed an appeal arising from an ALJ's "NCE" decision. The Board noted that the NCE in Hayes was requesting a hearing not only from the NCE order, but also from SAIF's claim acceptance. Under such circumstances, the Board stated that the NCE's hearing request in Hayes was contested at the same hearing as a matter concerning a claim (SAIF's claim acceptance) and, as such, appellate review authority would rest with the Board under ORS 656.740(3)(c), and (4)(c). Noting that the NCE's hearing request in the case at hand had not challenged SAIF's claim acceptance, the Board reasoned that the alleged employer's appeal of the NCE's order was not contested at the same hearing as a matter concerning claim and, as such, appellate review authority rested with the court under ORS 656.740(4).
Board Chair Hall dissented. Relying on Hayes, Hall argued that the court has recognized that "subjectivity" goes to the very heart of "a matter concerning a claim" over which the Board has review authority. Thus, when the "subjectivity status" of the employer or employee is called into question during an appeal from the Department's NCE order (as it was in the present case), Hall contended that appellate review authority from the ALJ's subsequent "NCE" order rested with the Board. Reasoning that the majority's decision to limit "a matter concerning a claim" to an acceptance/compensability challenge (rather than also including subjectivity issues) perpetuated the confusion arising from several court and Board decisions, Chair Hall concluded that it was never too late to revisit issues of law and precedent.
OCCUPATIONAL DISEASE:
"EXCLUSIVE REMEDY / ADA" -
CHALLENGES REJECTED
In Rex Brink, 48 Van Natta 916 (April 25, 1996), the Board held that claimant's occupational disease claim for bilateral carpal tunnel syndrome and trigger fingers was not compensable under ORS 656.802(2) because his work activities were not the major contributing cause of his condition. In reaching this conclusion, the Board declined to address claimant's contention that the "major contributing cause" standard, applied in conjunction with the exclusive remedy provision of amended ORS 656.018(1) effectively deprived him of a remedy in violation of Article I, section 10 of the Oregon Constitution. Relying on Jim M. Greene, 47 Van Natta 2245 (1995), the Board reiterated that claimant's challenge was not ripe for its consideration until claimant first obtained a court ruling that amended ORS 656.018 prohibited a civil action regarding the allegedly work-related condition. Citing State v. House, 299 Or 78, 81 (1985), the Board found such reasoning consistent with the court's fundamental rule to not decide a case on constitutional grounds unless absolutely necessary to a determination of the issue before it.
The Board also rejected claimant's contention that application of the "preexisting condition" standard (amended ORS 656.005(24)) violated the Americans with Disabilities Act (ADA). Relying on Sandra J. Way, 45 Van Natta 876 (1993), aff'd on other grounds Way v. Fred Meyer, Inc., 126 Or App 343 (1994), the Board concluded that claimant's ADA challenge fell outside its jurisdiction.
PENALTY ("385(5)"):
ARISING FROM "MCO" DISPUTE -
JURISDICTION - DIRECTOR
In Dewey W. Kennedy, 48 Van Natta 897 (April 19, 1996), the Board held that the Hearings Division lacked authority to consider claimant's request for a penalty stemming from a carrier's allegedly unreasonable failure to pay medical services pending its appeal of a prior litigation order involving a Managed Care Organization (MCO) dispute. Pursuant to its previous Order on Remand, 48 Van Natta 186 (1996), the Board had determined that jurisdiction over a medical treatment dispute arising from a MCO rested with the Director.
Citing ORS 656.385(5), and Thomas L. Abel, 47 Van Natta 1571, 1574 (1995), the Board stated that it was without authority to award penalties for matters arising under the Director's jurisdiction. Inasmuch as the basis for claimant's request for a penalty was the disputed "MCO" medical services and since jurisdiction over such disputes rested with the Director, the Board concluded that it lacked authority over the penalty issue.
"PRE-CLOSURE" DENIAL:
"262(7)(b)" - "COMBINED" CONDITION
In Marianne L. Sheridan, 48 Van Natta 908 (April 23, 1996), the Board held that a carrier's "pre-closure" denial was appropriate under amended ORS 656.262(7)(b) because claimant's accepted injury was no longer the major contributing cause of her "combined" condition. Prior to closure of her accepted right elbow chipped bone injury claim, a carrier issued a denial of claimant's current elbow condition on the basis that the injury had combined with a preexisting "loose body" condition and that the injury was no longer the major contributing cause of that condition.
Relying on amended ORS 656.262(7)(b), the Board determined that, since the carrier's "pre-closure" denial was based on the presence of a preexisting elbow condition and the provisions of ORS 656.005(7)(a)(B), it was procedurally proper. Turning to the merits of the carrier's denial, the Board was persuaded by the opinion of her former treating surgeon that claimant's compensable elbow injury "combined" with the preexisting loose body to cause her disability and need for treatment. Moreover, based on the surgeon's opinion, the Board concluded that the preexisting loose body or related cartilage damage / arthritic changes (rather than the compensable injury) were responsible for claimant's current right elbow condition
RECLASSIFICATION ("277(1)"):
MORE THAN ONE YEAR AFTER INJURY - "ORIGINALLY WAS" DISABLING "ACTUAL
WORSENING" MUST BE PROVEN
In Gary L. Swanson, 48 Van Natta 792 (April 9, 1996), the Board held that, pursuant to ORS 656.277(1), a claimant was required to prove an "actual worsening" under ORS 656.273(1) when asserting, more than one year after his nondisabling injury claim, that his injury "originally was" disabling. Asserting that the "actual worsening" requirement was only relevant if a worker was contending that his injury "has become" disabling, claimant contended that he need only prove that his injury had been disabled from the outset.
The Board disagreed. Finding nothing in the text and context of the statute, or in the 1995 legislative history, to indicate that the legislature intended to eliminate claimant's burden to establish an aggravation claim under ORS 656.273. Applying ORS 656.273(1), the Board found no medical evidence of an "actual worsening" of claimant's compensable condition supported by objective findings.
RESPONSIBILITY:
"308(1)" CODIFIES "DREWS"
In Keith Thomas, 48 Van Natta 510 (March 6, 1996), the Board held that amended ORS 656.308(1) codifies SAIF v. Drews, 318 Or 1 (1993) in that the major contributing cause standard in ORS 656.005(7)(a)(B) is applicable in determining responsibility between carriers for the "same condition." Several years after his accepted low back strain with the first employer, claimant injured his low back while working for another employer. The medical evidence established that claimant's low back claims with the two carriers involved the "same condition."
Because the responsibility dispute concerned the "same condition," the Board applied amended ORS 656.308(1). Noting that the statute provides that the compensability standards for determining the compensability of a combined condition under ORS 656.005(7) are applicable in determining the occurrence of a "new compensable injury," the Board reasoned that the Drews holding had been codified.
Based on the persuasive medical evidence, the Board found that claimant's later injury was the major contributing cause of his disability and need for treatment for his combined condition. Consequently, the Board concluded that responsibility for claimant's low back condition shifted to the later carrier.
TTD:
"RETROACTIVE" - 14-DAY LIMIT
TERMINATION - "AP" CEASES AUTHORIZATION
In Daral T. Morrow, 48 Van Natta 497 (March 4, 1996), the Board held that, pending a carrier's appeal of an ALJ's compensability finding, the carrier was required to pay temporary disability (TTD) prospectively from the date of the appealed ALJ's order (because the attending physician's retroactive authorization had occurred within 14 days from the date of the ALJ's order) until the date that claimant's attending physician ceased to authorize TTD. Some 11 days after the ALJ's compensability decision, claimant's attending physician authorized TTD retroactively for approximately 9 months before the ALJ's order. Relying on amended ORS 656.262(4)(a), the Board found that the retroactive authorization was only effective for 14 days. Since the authorization occurred less than 14 days from the date of the appealed ALJ's order, the Board further determined that TTD was only payable prospectively from the date of the appealed order. The Board cited amended ORS 656.313(1)(a), and Eulalio M. Garcia, 47 Van Natta 991 (1995).
Finally, finding that the attending physician had subsequently concluded that it was too difficult to provide a retroactive work release, the Board reasoned that the physician had "ceased" to authorize TTD. Consequently, relying on ORS 656.268(3)(d), and 656.262(4)(f), the Board held that the carrier was entitled to terminate claimant's TTD effective the date claimant's attending physician "ceased" to authorize such benefits.
TTD: SUBSTANTIVE -
NOT LIMITED TO "AP" AUTHORIZATION
In Dorothy E. Bruce, 48 Van Natta 518 (March 8, 1996), the Board held that, after claim closure, a claimant's substantive right to temporary disability was not contingent on authorization of time loss from an attending physician. Several years after her compensable injury, claimant's employer took her off work until her compensable condition resolved. Two months later, claimant's attending physician released claimant to light work. Since the employer did not have a light duty job available, claimant remained off work until she was eventually released to regular duty. After claim closure, the carrier contended that claimant was not entitled to temporary disability beginning with her departure from work because her physician's subsequent time loss authorization was retroactive.
The Board disagreed. Relying on ORS 656.210 and Lebanon Plywood v. Seiber, 113 Or App 651, 654 (1992), the Board reasoned that a claimant's substantive entitlement to temporary disability is determined on claim closure and is based on a preponderance of evidence establishing that the claimant was disabled due to the compensable injury before being declared medically stationary. The Board further determined that, unlike a claimant's procedural entitlement to temporary disability during an open claim, substantive entitlement to such benefits is not contingent on an attending physician's time loss authorization. The Board relied on Esther C. Albertson, 44 Van Natta 521, aff'd Albertson v. Astoria Seafood Corporation, 116 Or App 241 (1992). Finding that claimant left work as a result of her compensable injury, the Board concluded that she was entitled to temporary disability beginning with her departure from work. The Board also cited Tom D. Husted, 44 Van Natta 510 (1992).
CLAIM PRECLUSION:
"CDA" BARS "NEW INJURY" CLAIM
D & D Company v. Kaufman, 139 Or App 459 (March 6, 1996). The court reversed the Board's order in Christopher J. Kaufman, 47 Van Natta 433 (1995), previously noted 14 NCN 2:7, which had held that claimant's "new injury" claim for a back condition was not precluded by a previously approved Claim Disposition Agreement (CDA) concerning an accepted low back claim. Noting that claimant's subsequent back injury had been accepted as an aggravation of an earlier compensable back injury while the CDA was pending Board approval, the carrier contended that claimant was precluded from claiming (after the CDA was approved) that his back condition was a "new injury."
The court agreed with the carrier's contention. In doing so, the court noted that the CDA (which was drafted by claimant's attorney and pertained to claimant's prior accepted injury which had previously been closed) provided that it was a full release of "all other issues or benefits allowed by law, except for medical services," and further stated that claimant's claim had not been closed and that he had been unable to return to the workforce. In light of such statements, the court determined that the terms of the CDA encompassed not only the initial injury, but the subsequent work incident which had been accepted as an aggravation. Citing Safeway Stores, Inc. v. Seney, 124 Or App 450, 454 (1993), the court reasoned that claimant may not "escape his bargain" by now recharacterizing the subsequent claim as one for a new injury.
COURSE & SCOPE:
PARKING LOT - HAZARD
EMPLOYER'S FLOWER BOX
SAIF v. Marin, 139 Or App 518 (March 13, 1996). The court reversed the Board's order in Ramon M. Marin, 46 Van Natta 1691 (1994), previously noted 13 NCN 4:7, which had held that claimant's injury arose out of the course and scope of his employment. While in his employer's parking lot after his normal work day, claimant was unable to start his truck. After his supervisor agreed to jump start the truck, the supervisor's wife moved her car closer to claimant's truck. While doing so, the car struck the employer's flower box which struck claimant. Reasoning that the flower box was a hazard associated with the parking lot over which the employer exercised control, the Board concluded that the causal connection between claimant's injuries and his employment was sufficient to establish that his injuries "arose out of" his employment.
The court disagreed. First, the court found no evidence that the flower box, by itself, presented any risk of harm. Second, rather than focusing only on the instrumentality over which the employer had control (the flower box), the court determined that the Board should have considered whether the totality of the events that gave rise to claimant's injury was causally related to his employment. The court relied on Kaiel v. Cultural Homestay Institute, 129 Or App 471, 480, rev den 320 Or 453 (1994), and Henderson v. S.D. Deacon Corp., 127 Or App 333 (1994).
Reasoning that the nature of the risk of harm to claimant could neither be characterized as personal nor directly employment-related, the court concluded that the risk of claimant being injured by the flower box while jump starting his car in the parking lot was more properly denominated a "neutral risk." The court cited Larson, 1 Workmen's Compensation Law, Section 7.30 - 3-13 (1995). Consequently, the court stated that claimant's injury was compensable only if his work conditions caused him to be in a position to be injured by the flower box.
Had the flower box been tipped over by claimant or had it been pushed into him by another vehicle as he was walking to or from work through the parking lot, the court noted that it might have concluded that his employment conditions caused him to be in a position to be injured by the flower box. However, the court reasoned that claimant's injury was not precipitated simply by walking through the parking lot to his car, but rather was attributable to the "jump starting" efforts and the circumstances that followed. Under those circumstances, the court held that claimant's activities were sufficiently removed from his normal ingress and egress to and from work to break the causal connection between his normal employment conditions and his injury.
CLAIM PROCESSING:
"AGG" RIGHTS - "273(4)" -
"NONDISABLING STATUS" - TIME OF ACCEPTANCE
Liberty Northwest Insurance Corporation v. Koitzsch, 140 Or App 194 (April 17, 1996). The court affirmed the Board's order in Arlene J. Koitzsch, 47 Van Natta 1293 (1995), which found that claimant's 5-year aggravation rights began running from the first closure of her claim, rather than from the date of the injury. Reasoning that claimant's injury claim had been originally accepted as disabling (albeit more than one year after the injury due to litigation of the carrier's claim denial), the Board had determined that the date of injury was not the appropriate date from which claimant's aggravation rights began to run.
The court identified the key question as whether an injury must be accepted as nondisabling before it is considered to be "in a nondisabling status" as described in ORS 656.273(4)(b). Noting that at the time of claim acceptance under ORS 656.262(6) a carrier is required to designate an injury as disabling or nondisabling, the court agreed with the Board that the claim must be accepted as nondisabling before it is in "nondisabling status" under ORS 656.273(4)(b). The court cited Gary G. Koker, 47 Van Natta 1513, 1514 (1995), and Donald R. Dodgin, 45 Van Natta 1642 (1993).
In reaching its conclusion, the court distinguished Stacy v. Corrections Div., 131 Or App 610 (1994), rev den 320 Or 567 (1995), and Papen v. Willamina Lumber Co., 123 Or App 249 (1993), rev den 319 Or 81 (1994). In contrast to the case at hand, the court noted that in both Stacy and Papen the claims had been accepted as nondisabling. Inasmuch as the present claim had not been in nondisabling status at the time of its acceptance, the court concluded that ORS 656.273(4)(a) was applicable and that claimant's aggravation rights did not begin to run until the date of first claim closure.
EXTENT:
"PRE-369" HEARING -
CLAIMANT TESTIMONY ADMISSIBLE
Precision Castparts Corp. v. Plummer, 140 Or App 227 (April 17, 1996). The court affirmed the Board's order in John P. Plummer, 47 Van Natta 857 (1995), which had awarded claimant 15 percent scheduled permanent disability for a right knee injury. Noting that claimant had suffered a previous injury which had resulted in an earlier 15 percent award, the carrier contended that the Board had erred in failing to apply an offset under ORS 656.222 and former OAR 436-35-007(3)(a).
Concluding that substantial evidence supported the Board's determination that claimant's prior injury had completely resolved at the time of his second injury, the court held that the Board had properly denied the carrier's request for an offset for compensation previously awarded. In reaching its conclusion, the court addressed the question of whether claimant's testimony could be considered at the hearing under amended ORS 656.283(7).
The court noted that the unmistakable import of the text of ORS 656.283(7) is that any evidence, including a claimant's testimony concerning a notice of closure or reconsideration order, is inadmissible at a subsequent hearing concerning the extent of the injured worker's permanent disability if not submitted at reconsideration and not made a part of the reconsideration record. Nevertheless, the court determined that it need not consider claimant's challenges to the statutory provision because it was not applicable.
In doing so, the court reasoned that, although the statute purports to bar from admission at hearing evidence not previously offered on reconsideration, the statute makes no provision concerning the review of evidence previously and properly admitted. Inasmuch as claimant's testimony was admissible when it was offered and considered, the court concluded that its admission was not error.
"GOOD CAUSE":
UNTIMELY HEARING REQUEST -
"AMENDED" ORS 656.319(6)
Gillander v. SAIF, 140 Or App 210 (April 17, 1996). The court affirmed the Board's order in Joan C. Gillander, 47 Van Natta 391, recon den 47 Van Natta 789 (1995), which found that claimant had not established good cause for her failure to timely request a hearing from a carrier's denial of her injury claim. Contending that she was confused by the carrier's response to her claim, claimant asserted that the Board should consider in the first instance whether her hearing request was timely under amended ORS 656.319(6) (which provides that hearings for improper claim processing shall not be granted unless the hearing request is filed within two years after the alleged action or inaction).
The court declined to determine whether the amendments to ORS 656.319 were retroactively applicable. Reasoning that ORS 656.319(6) was intended to apply to challenges of a carrier's claim processing, the court concluded that the statute did not apply to the current dispute which concerned a substantive denial of the claim.
Finally, the court declined to consider claimant's contention that the Board had also erred in holding that she was precluded from contesting a second denial because it was based on the same factual transaction as the claim denied by the first denial. Noting that claimant had not raised her contention to the Board until after filing her petition for judicial review, the court held that the issue had not been timely raised before the Board.
PALLIATIVE CARE DISPUTE:
JURISDICTION - DIRECTOR
INCLUDES CONSTITUTIONAL CHALLENGE
Kenfield v. Health Future, Inc., 139 Or App 417 (March 6, 1996). The court affirmed the Board's order in Lela M. Kenfield, 47 Van Natta 54 (1995), which had held that a requested medical treatment was for palliative purposes and, as such, not compensable under former ORS 656.245(1)(b). Determining that the Director had exclusive jurisdiction concerning any further challenge to the carrier's palliative medical services denial, the Board had also declined to consider claimant's constitutional challenge to the statutory scheme denying her compensation for palliative care.
Before the court, claimant only contended that the Board had erred in concluding that it lacked jurisdiction to determine the constitutionality of the palliative care statutory limitations. Specifically, claimant asserted that she had a vested right to palliative medical services. The court rejected claimant's contention. Once the requested medical care had been determined to be palliative, the court reasoned that any compensability or constitutional challenges regarding such care must be addressed to the Director. The court cited Hathaway v. Health Future Enterprises, 125 Or App 549, aff'd 320 Or 383 (1994).
PENALTY ("268(4)(g)"):
20 PERCENT PERMANENTLY DISABLED
SAIF v. Valencia, 140 Or App 14 (March 27, 1996). The court reversed a Board order that assessed a penalty under ORS 656.268(4)(g) based on increased permanent disability granted by an Order on Reconsideration. Noting that the increased award had been based on new information, the carrier contended that a penalty should not be imposed. Citing SAIF v. St. Clair, 134 Or App 316, 320 (1995), the court reiterated that the "268(4)(g)" penalty is not contingent on carrier misconduct. Nevertheless, the court held that a penalty was not assessable under the statute because a prerequisite for imposition of the penalty had not been satisfied; i.e., claimant was not 20 percent permanently disabled (his permanent disability was less than 64 degrees). The court relied on SAIF v. Cline, 135 Or App 155, rev den 321 Or 560 (1995).
Roseburg Forest Products v. Lambert, 140 Or App 131 (March 27, 1996). The court reversed the Board's order in Cody L. Lambert, 48 Van Natta 115 (1996), that assessed a penalty under ORS 656.268(4)(g) based on increased permanent disability granted by an Order on Reconsideration. Noting that claimant had conceded that the Board's decision was contrary to SAIF v. Cline, 135 Or App 155, rev den 321 Or 560 (1995) and justified reversal, the court remanded for reconsideration.
REMAND:
RETROACTIVE APPLICATION OF "SB 369"
Conner v. Connecticut Indemnity Co., 139 Or App 421 (March 6, 1996). The court remanded the Board's order in Danny B. Conner, 47 Van Natta 705 (1995), which had upheld a "resultant condition" denial under former ORS 656.005(7)(a)(B) insofar as it pertained to claimant's disability and need for medical treatment after a particular date. In reaching its conclusion, the Board had found that, although claimant's work injury was the major contributing cause of the onset of his symptoms of degenerative disc disease, the industrial injury did not continue to be the major contributing cause of claimant's disc disease after a specific date. Noting the parties' agreement that the case was governed by ORS 656.005(7)(a)(B), the court remanded for reconsideration in light of the 1995 amendments to that statute, as well as the enactment of ORS 656.005(24). The court cited Volk v. America West Airlines, 135 Or App 565 (1995).
SAIF v. Elizondo, 140 Or App 135 (March 27, 1996). The court, per curiam, reversed the Board's order in Richard R. Elizondo, 47 Van Natta 377 (1995), that had held that claimant was entitled to vocational assistance. Citing Windom v. Dodge Logging, 139 Or App 130 (1996), and Volk v. America West Airlines, 135 Or App 565, rev den 322 Or 645 (1996).
RESPONSIBILITY:
"SAME CONDITION" - "308(1)"
CONTRADICTORY FINDINGS
Sanford v. Balteau Standard, 140 Or App 177 (April 17, 1996). The Board reversed the Board's order in Archiel F. Sanford, 46 Van Natta 1736 (1994), which had found an "aggravation" carrier responsible for claimant's current low back condition because his subsequent work injuries were not the major contributing cause of his condition. Citing ORS 656.308(1) and Smurfit Newsprint v. DeRosset, 118 Or App 368 (1993), the court determined that responsibility for claimant's current need for treatment would be assigned to the carrier with the most recent accepted claim involving the "same condition."
Noting that neither claimant nor the "aggravation" carrier had challenged the Board's conclusion that claimant's need for treatment was related to treatment previously accepted by the "aggravation" carrier, the court identified the critical issue as whether a subsequent carrier who had accepted a "lumbar strain" had accepted the "same condition" as that previously accepted by the "aggravation" carrier. Turning to the Board's order, the court found possibly inconsistent findings in that the Board had identified the condition accepted by the subsequent carrier as "lumbosacral strain, superimposed on degenerative and mechanical changes due to the [prior] surgery," while also later concluding that the subsequent injury was a "temporary lumbar strain . . . which resolved without permanent impairment."
Finding nothing in the record or in the Board order to indicate how the term "superimposed" was intended to be used, the court determined that the Board's conclusion might contradict its findings and the medical evidence. Reasoning that it could not determine whether the Board's findings and its conclusions were consistent, the court remanded for clarification. The court cited Furnish v. Montavilla Lumber Co., 124 Or App 622, 624-25 (1993).
STANDARDS (FORMER "35-310(2)"):
ADAPTABILITY - RETURN TO WORK
"ZERO" VALUE INVALID
Phillips v. Hammond, 139 Or App 507 (March 6, 1996). The court, per curiam, reversed the Board's order in Zane E. Phillips, 47 Van Natta 1021 (1995), that, in evaluating claimant's permanent disability, had applied a Director's rule which provided for an adaptability value of zero when claimant returned to regular work. Citing Carroll v. Boise Cascade Corp., 138 Or App 610 (1996), the court noted that, under a different version of the Director's rules, it had determined that such a provision was invalid. Reasoning that the rules involved in the case at hand were subject to the same defect as the rules in Carroll that had found to be invalid, the court concluded that claimant's permanent disability award must be recalculated.
Finally, the court rejected claimant's request for determination of the rate of his permanent disability. Citing Hamlin v. Salem Area Transit, 137 Or App 497, 501 (1995), the court held that such a request was premature because the Board had not yet determined whether he was entitled to any particular rate.
Grewell v. Harris Transport Co., 139 Or App 511 (March 6, 1996). The court, per curiam, reversed a Board order that, in evaluating claimant's permanent disability had applied a Director's rule which provided for an adaptability value of zero when claimant returned to regular work. Citing Phillips v. Hammond, 139 Or App 507 (March 6, 1996), and Carroll v. Boise Cascade Corp., 138 Or App 610 (1996), the court remanded for reconsideration.
SUBSTANTIAL EVIDENCE:
INCONSISTENT FINDINGS - REMAND
SAIF v. Doolittle, 140 Or App 373 (April 17, 1996). The court remanded the Board's order in Leota J. Doolittle, 47 Van Natta 813 (1995), which had increased claimant's unscheduled permanent disability from 17 percent to 29 percent. The Board had concluded that, although claimant's job at the time of injury involved some work in the "light" category, another job rated by the Dictionary of Occupational Titles as in the "medium" category provided a more accurate description.
The court determined that the Board's order contained inconsistent findings that, although it had adopted the ALJ's finding that claimant lifted up to 50 pounds only on "an occasional basis," the Board also noted that "a significant portion of claimant's work involved lifting heavy equipment" which "was more than an incidental part of claimant's work" and "required more than light strength on a relatively routine basis." Unable to discern whether these inconsistencies were intentional or an oversight or whether they could be reconciled, the court concluded that it was presently unable to review the Board's order. The court cited Furnish v. Montavilla Lumber Co., 124 Or App 622, 625 (1993).
On April 11, 1996, the Senate confirmed the Governor's appointment of James W. Moller as a new Board Member. Before coming to the Board, Jim was employed as an appellate attorney with the SAIF Corporation for the past 2 1/2 years. In addition, he previously served a 1 1/2 year stint with the Board as a "temporary" Board Member, as well as some 4 years as a review and Senior staff attorney. Prior to those assignments, Jim was an associate attorney with Tooze, Shenker, et al., in Portland. Jim, his wife (Chris), and their two children (Andrew and Sara), reside in Wilsonville.
MEDIATION:
"POSTPONEMENT" REQUESTS:
"7-DAY" POLICY
The Hearings Division is currently applying a seven-day policy concerning postponement requests that are based on the requesting party's calendar conflict. The general policy is that if the conflict still exists (per notification from the requesting party) seven days before the hearing, the postponement will be granted. Recognizing that there will always be some exceptions to any general policy as to when a postponement request in conflict situations should be granted, each assistant PALJ will consider, on a case-by-case basis, exceptional circumstances (related by the requesting party) that would warrant granting the postponement at the time of the request or at some time earlier than seven days before the hearing date.
Questions have been raised concerning how a subscriber knows when a subscription to the Board's News and Notes must be renewed. The expiration date is printed on the address label.
To renew your subscription, complete the form at the back of this issue and send it to:
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