AGGRAVATION:
"OUT-OF-STATE" EXPOSURE -
FIRST ESTABLISH COMPENSABLE CONDITION
In Marilynn A. Wheeler, 48 Van Natta 1082 (May 29, 1996), the Board held that, when pursuing an aggravation claim for a worsened condition where there may have been contribution from an "out-of-state" injury or exposure, claimant must first prove a compensable aggravation claim under ORS 656.273(1). In doing so, the Board rejected a carrier's contention that claimant was barred from bringing her aggravation claim until final determination of her "out-of-state" claim. See Miville v. SAIF, 76 Or App 603 (1985).
While working out-of-state, claimant (who had a previously accepted Oregon claim for bilateral wrist tendenitis) received treatment for a bilateral fibrositis and epicondylitis condition. In addition to filing an aggravation claim, she filed a claim in the other state. While her appeal of the dismissal of the "out-of-state" claim was pending, claimant proceeded to hearing on her denied aggravation claim. Reasoning that there had not been a final determination regarding her "out-of-state" claim, the ALJ dismissed her hearing request concerning the denied aggravation claim without prejudice. The ALJ relied on Miville v. SAIF, supra.
The Board reversed the ALJ's decision. Citing Olson v. EBI Co., 78 Or App 261 (1986), and Don L. Siler, 43 Van Natta 254, 255 (1991), the Board articulated the Miville rule as stating that when subsequent out-of-state employment independently contributes to a condition for which workers' compensation benefits are sought in Oregon, the original Oregon employer remains responsible if the initial Oregon injury continues to materially contribute to that condition, provided that the worker has filed a claim for benefits in the foreign jurisdiction where the second injury occurred, and the claim has been rejected. Thus, as a condition precedent to application of the Miville rule, the Board reasoned that claimant must prove that the condition for which benefits are sought in Oregon is compensably related to an accepted Oregon injury.
Turning to a determination of the compensability of claimant's current condition, the Board concluded that the current condition (bilateral fibrositis and lateral epicondylitis) had not been accepted. In light of such circumstances, the Board determined that claimant must first establish the compensability of the conditions under ORS 656.005(7)(a). The Board relied on Gloria T. Olson, 47 Van Natta 2348 (1995).
Finding neither evidence of a preexisting condition nor evidence that claimant's current conditions were directly caused by her compensable Oregon injury, the Board reasoned that the appropriate analysis for establishing the compensability of the disputed conditions was whether they constituted a consequential condition under ORS 656.005(7)(a)(A). Relying on Albany General Hospital v. Gasperino, 113 Or App 411 (1992), the Board held that the conditions were not compensable because claimant's compensable bilateral wrist condition was not the major contributing cause of her bilateral elbow conditions. Inasmuch as the conditions were not compensable, the Board found it unnecessary to further proceed with an aggravation analysis, including whether claimant's subsequent "out-of-state" employment exposure amounted to "an injury not occurring within the course and scope of employment" within the meaning of ORS 656.273(1). See John I. Jett, 46 Van Natta 33 (1994).
ATTORNEY FEE ("386(1)"):
AGGRAVATION DENIAL -
"MOOT" BY PREMATURE CLOSURE FINDING
In William G. Sheffield, 48 Van Natta 1310 (June 27, 1996), the Board held that claimant was not entitled to a carrier-paid attorney fee under ORS 656.386(1) when an aggravation denial became moot as a result of a subsequent Order on Reconsideration finding that the claim had been prematurely closed. Following a Determination Order (DO), a carrier issued an aggravation denial. While claimant's hearing request from that denial was pending, an Order on Reconsideration found the claim to be prematurely closed and rescinded the DO. Contending that his counsel had obtained the "rescission" of the carrier's aggravation denial without a hearing, claimant sought a carrier-paid attorney fee under ORS 656.386(1).
The Board declined to grant claimant's request. While the Department's premature closing finding might have negated or rendered the aggravation denial moot, the Board was not persuaded that the carrier had "rescinded" its denial. Furthermore, even if a "rescission" could occur in the absence of an affirmative act by the carrier, the Board concluded that the carrier's denial had not been rescinded. Instead, noting that the carrier's aggravation denial had been based on the premise that the claim was properly closed, the Board reasoned that the Department's premature closure finding had returned the claim to open status and, in doing so, rendered the denial a legal nullity. In support of its conclusion, the Board cited Candy M. Kayler, 44 Van Natta 2424 (1992), and Carol J. Knapp, 41 Van Natta 855, 856 (1989).
ATTORNEY FEE ("386(1)"):
"DENIED CLAIM" -
RESPONSE TO HEARING REQUEST
In Emily M. Bowman, 48 Van Natta 1199 (June 14, 1996), the Board held that claimant was entitled to a carrier-paid attorney fee under ORS 656.386(1) when, after denying (in its response to claimant's hearing request) that she had sustained a work-related injury or occupational disease, the carrier accepted several conditions prior to hearing. After the carrier accepted a right ankle and foot sprain, claimant sought acceptance of her low back and fascitis conditions. In response to claimant's hearing request regarding the carrier's failure to accept or deny these conditions, the carrier denied that she had sustained a work-related injury or occupational disease. When the carrier accepted the conditions prior to hearing, claimant sought an attorney fee award under ORS 656.386(1).
The Board concluded that claimant was entitled to a "386(1)" attorney fee. In doing so, the Board reasoned that the carrier's response meant that the unaccepted claims had been "denied" on the express ground that the conditions were not compensable. In reaching this conclusion, the Board distinguished Michael J. Galbraith, 48 Van Natta 351 (1996), where it had not found a "denied claim" when a carrier's response to a hearing request had asserted that the worker was "entitled to no relief" because there had not been a refusal to pay compensation on the express ground that the condition was not compensable or that the claimant was not otherwise entitled to compensation. In contrast to Galbraith, the Board noted that the carrier's response to claimant's hearing request denied that claimant had sustained a work-related injury or disease and, as such, constituted a refusal to pay compensation on the express ground that the condition was not compensable.
CLAIM PRECLUSION:
CDA - FUTURE ATTORNEY FEE
In Terry R. Myers, 48 Van Natta 1039 (May 20, 1996), the Board held that a previously approved Claim Disposition Agreement (CDA) did not preclude claimant from receiving a carrier-paid attorney fee under ORS 656.386(1) when he prevailed against the carrier's denial of his medical services claim for his current condition. Reasoning that carrier-paid attorney fees were neither "compensation" nor a "benefit to [the] claimant," the Board further noted that the 1992 CDA did not contain an express provision addressing attorney fees nor did it purport to settle all "issues raised or raisable." Relying on Robert J. Egyedi, 44 Van Natta 1748 (1992), the Board concluded that claimant's entitlement to a carrier-paid attorney fee was not barred by the CDA.
In reaching its conclusion, the Board acknowledged that, effective June 7, 1995, ORS 656.236(1) had been amended. In particular, the Board noted that the amended statute now provides that, unless otherwise specified, a CDA resolves all "non-medical service" matters and all rights to compensation, attorney fees and penalties potentially arising out of claims. In light of such circumstances, the Board commented that the statutory amendments would appear to overrule the Egyed holding. However, since the CDA in the present case was approved under the prior version of ORS 656.236(1) (which contained no requirement regarding the preservation of attorney fee rights), the Board determined that the Egyedi rationale was applicable.
CLAIM PROCESSING:
"PRE-CLOSURE" DENIAL - ACCEPTED CONDITION
"ROLLER" STILL APPLICABLE
In Elizabeth B. Berntsen, 48 Van Natta 1219 (June 19, 1996), the Board, en banc, held that a "pre-closure" denial of a current condition was invalid when the condition was neither a "combined" nor "consequential" condition. In so doing, the Board concluded that the rationale expressed in Roller v. Weyerhaeuser Co., 67 Or App 583, mod 68 Or App 743, rev den 297 Or 124 (1984) remains viable despite the enactment of amended ORS 656.262(6)(c) and (7)(b) (which allow for the issuance of denials of "combined" or "consequential" conditions whenever the compensable injury ceases to be the major contributing cause of the "combined" or "consequential" condition, including before claim closure).
Prior to closure of claimant's compensable back claim, the carrier issued a denial of her current back condition. Contending that claimant's current condition constituted either a "combined" or "consequential" condition, the carrier asserted that the denial was appropriate under ORS 656.262(6)(c) and 656.262(7)(b).
The Board disagreed with claimant's assertion. Finding that the medical evidence failed to support either a "combined" or "consequential" condition, the Board determined that neither of the aforementioned statutes were applicable. Consequently, based on the rationale expressed in Roller, the Board held that, since the carrier's "pre-closure" denial was for the same condition that it had previously accepted, the denial was procedurally improper and invalid.
In reaching its conclusion, the Board distinguished Marianne L. Sheridan, 48 Van Natta 908 (April 23, 1996). The Board noted that, in Sheridan, a "pre-closure" denial was found appropriate because a compensable elbow injury had "combined" with a preexisting loose body in the elbow and the compensable injury was not the major contributing cause of the "combined" condition. In contrast to Sheridan, the Board determined that the carrier's denial was not based on the presence of a preexisting condition or the provisions of ORS 656.005(7)(a)(B), 656.262(6)(c), or (7)(b).
Chair Hall concurred with the majority's reasoning regarding the application of the Roller holding. However, Hall dissented from that portion of the majority's decision which held that a penalty for the carrier's allegedly unreasonable claim classification was not warranted. In light of the medical evidence available to the carrier when it classified claimant's injury claim as nondisabling, Chair Hall contended that its classification was unreasonable.
CLAIM PROCESSING ("262(6)(c)"):
INJURY "CEASES" TO BE MAJOR CAUSE -
"CHANGE" IN CONDITION / CIRCUMSTANCES
In Harry L. Lyda, 48 Van Natta 1300 (June 27, 1996), the Board held that, in order to establish that an otherwise compensable injury "ceases" to be the major contributing cause of a previously accepted "combined condition" under ORS 656.262(6)(c), the denial must be based on a change in claimant's condition or a change of circumstances. Based on several physicians' opinions, the carrier contended that claimant's present chronic pain condition was unrelated to his compensable arm, neck, shoulder, and back injury.
Noting that the chronic pain condition had been found compensable by a prior litigation order, the Board concluded that the carrier could end its responsibility for the "combined condition" pursuant to ORS 656.262(6)(c) if claimant's compensable injury "ceases" to be the major contributing cause of the condition. Citing Elsa S. Wong, 48 Van Natta 444, 445 n.1 (1996), the Board reasoned that the word "ceases" implies that there must be a change in claimant's condition or a change of circumstances such that the compensable injury is no longer the major contributing cause of claimant's combined condition.
After examining the medical opinions, the Board stated that it was not inclined to find that there had been a change in claimant's condition or change in circumstances to warrant the issuance of a denial under ORS 656.262(6)(c). In any event, even if the requisite change of circumstances was present to support the procedural validity of the denial, the Board was not persuaded that the compensable injury "ceased" to be the major contributing cause of claimant's chronic pain condition.
CLAIM PROCESSING:
PPD RATE - AMENDED "214(2)"
"PRE-JAN 1992" INJURY -
$347.51 @ DEGREE
In Randy L. Dare, 48 Van Natta 1230 (June 19, 1996), the Board retroactively applied amended ORS 656.214(2) and held that claimant's scheduled permanent disability (PPD) award must be paid at a rate of $347.51 per degree. In doing so, the Board determined that, since claimant's compensable injury was not incurred between January 1, 1992 through December 31, 1995, the "rate" formula of section 2, chapter 745 of Oregon Laws 1991 (which was retained by SB 369) was not applicable.
In Dare, for his 1987 compensable bilateral wrist condition, claimant initially received scheduled PPD at a rate of $125 per degree. Following claim reopening for an authorized training program, an April 1995 Notice of Closure reclosed the claim with additional scheduled PPD awards. In July 1995, when the carrier refused to pay his remaining PPD award at a rate of $347.51 under amended ORS 656.214(2), claimant requested reconsideration from the Director. After the Director dismissed reconsideration pursuant to former ORS 656.268(8), (9), and Weyerhaeuser v. Purdy, 130 Or App 322 (1994), claimant requested a hearing.
Based on ORS 656.202(2), the carrier contended that claimant's PPD award must be paid at the rate which was in effect at time of his 1987 compensable injury. The Board disagreed. Noting that the statute mandates application of the law at the time of injury only where not "otherwise provided by law," the Board reasoned that the statute was not applicable because ORS 656.214(2) provides otherwise for the payment rate of an injured worker's PPD award. Moreover, the Board concluded that the exception to the "$347.51 per degree" PPD award of amended ORS 656.214(2) was not applicable since claimant's 1987 compensable injury did not occur between January 1, 1992 and December 31, 1995.
Finding no specific exception that would exempt injuries occurring in 1987 from the retroactive application of SB 369 and amended ORS 656.214(2), the Board held that claimant's "post-June 7, 1995" PPD payments must be paid at a rate of $347.51 per degree. In doing so, the Board rejected the insurer's interpretation of the statutory scheme which would essentially require the Board to give effect to one statute over another, while ignoring the general retroactivity provision of SB 369 and the court's holding in Volk v. America West Airlines, 135 Or App 565 (1995).
"COMBINED" CONDITION:
ADA / ADEA / EXCLUSIVE REMEDY CHALLENGES
In Gary W. Benson, 48 Van Natta 1161 (June 11, 1996), in finding a "combined" condition not compensable under ORS 656.005(7)(a)(B), the Board held that it lacked authority to consider claimant's challenge that the "major contributing cause" standard of the statute violated the Americans with Disabilities Act (ADA) and the Age Discrimination and Employment Act (ADEA). Addressing claimant's ADA argument, the Board continued to following the holding of Sandra J. Way, 45 Van Natta 876 (1993), aff'd on other grounds Way v. Fred Meyer, Inc., 126 Or App 343 (1994), and determined that it was not the proper forum to address such a challenge. Alternatively, the Board noted that the record did not establish the first element of a prima facie case of discrimination under the ADA, i.e., that claimant was "an individual with a disability" under the terms of the Act. In doing so, the Board found no medical evidence indicating that claimant's preexisting asymptomatic low back condition was a physical impairment that substantially limited a major life activity. See 42 U.S.C. Section 12102(2)<./P>
Turning to claimant's ADEA challenge, the Board relied on its Way reasoning and determined that it lacked jurisdiction to consider such an issue. Instead, the Board reasoned that the Equal Employment Opportunity Commission was the appropriate agency responsible for investigating and enforcing the provisions of the ADEA. Alternatively, the Board noted that the record did not support a conclusion that claimant's preexisting back condition was related to age nor did the record establish that age was the determinative factor in the carrier's denial of the claim.
Finally, the Board declined to consider claimant's contention that the "major contributing cause" standard applied in conjunction with the exclusive remedy provision of amended ORS 656.018 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 concluded that claimant had not demonstrated that he had been injured by operation of amended ORS 656.018.
"COMBINED" CONDITION:
"COMBINATION" FROM THE OUTSET -
"NAZARI" REMAINS VIABLE
In Charles L. Grantham, 48 Van Natta 1094 (May 30, 1996), the Board held that the "combined condition" analysis under ORS 656.005(7)(a)(B) applies from the outset of an industrial injury provided that the injury combines with a preexisting condition. In doing so, the draft concludes that the reasoning expressed in Tektronix, Inc. v. Nazari, 117 Or App 409 (1992), on recon 120 Or App 590, rev den 318 Or 27 (1993), regarding former ORS 656.005(7)(a)(B) remains viable.
In Grantham, claimant sustained a lumbar strain at work which combined with a preexisting degenerative disc disease. He contended that the "combined condition" analysis of ORS 656.005(7)(a)(B) was not applicable to the initial strain injury, but rather applied only to his condition after his initial strain resolved.
The Board rejected claimant's argument. Based on amended ORS 656.005(7)(a)(B), the Board recited that if "an otherwise compensable injury combines at any time with a preexisting condition to cause or prolong disability or a need for treatment, the combined condition is compensable only if, so long as and to the extent that the otherwise compensable injury is the major contributing cause" of the disability or need for treatment of the combined condition. Turning to an application of the aforementioned standard, the Board found that claimant sustained a lumbar strain work injury which combined with his preexisting degenerative condition from the outset. Inasmuch as the work injury was not the major contributing cause of the "combined condition," the Board concluded that the condition was not compensable.
Chair Hall specially concurred. Noting that the statute now speaks of an otherwise compensable injury combining at any time with a preexisting condition, Hall reasoned that it is also conceivable that a preexisting condition could combine with a compensable injury at a later time. Thus, in applying amended ORS 656.005(7)(a)(B) and Nazari, Hall stated that it is first necessary to determine whether a compensable injury has combined with a preexisting condition and whether that combination occurred at the outset or at a later time. Since the medical evidence established that claimant's otherwise compensable injury combined at the outset with his preexisting condition, Chair Hall concurred with the majority's conclusion that the Nazari analysis was appropriate.
COURSE & SCOPE:
"HOME OFFICE" INJURY
In Lana M. Lillie, 48 Van Natta 1201 (June 14, 1996), the Board held that claimant's finger injury, which occurred when she slammed her finger on the door to her "office" room while she was transporting groceries into her house, did not arise out of her employment. Claimant, an office manager / bookkeeper, had made arrangements with her employer to convert her laundry room into an at-home office. While carrying her groceries into her house through the "office," she slammed her finger in the door.
Finding that the injury occurred during work hours in a place at or near the area of her home devoted to her employment, the Board determined that claimant was in the course of her employment at the time of injury. Nevertheless, reasoning that the conditions of her employment had not put her in a position to be injured, the Board concluded that an insufficient causal connection existed between claimant's injury and her employment. In concluding that claimant's injury did not "arise out of" her employment, the Board reasoned that claimant's injury had not occurred as a result of any employer-created hazard and she had been engaged in a personal mission. The Board cited Norpac Foods, Inc. v. Gilmore, 318 Or 363 (1994), and Henderson v. S. D. Deacon Corp., 127 Or App 333, 338-39 (1994).
COURSE & SCOPE:
"PARKING LOT" INJURY -
STRUCK BY CO-WORKER'S CAR
In Lisa M. Bean, 48 Van Natta 1216 (June 19, 1996), the Board held that claimant's injury, which occurred when she was struck by a co-worker's vehicle while walking across her employer's parking lot to begin her work day, arose out of her employment. Citing SAIF v. Marin, 139 Or App 518 (1996), the Board concluded that the situation presented a "neutral risk," i.e., neither personal nor directly employment-related. In accordance with the Marin rationale, the Board reasoned that claimant's injury was compensable only if her work conditions caused her to be in a position to be injured by the co-worker's vehicle.
Considering that claimant was walking to her work site after parking in the employer-controlled parking lot when she was struck by a co-worker's vehicle, the Board determined that the sufficient causal connection required by Norpac Foods, Inc. v. Gilmore, 318 Or 363 (1994), and Marin had been satisfied. In reaching its conclusion, the Board noted that, unlike the situation in Marin (where the claimant had been struck by a vehicle in his employer's parking lot while attempting to jump start his own vehicle), claimant had not engaged in any activity that removed her from normal ingress to work. Finding that claimant was simply walking through the employer's parking lot to enter her immediate work area, the Board concluded that claimant's injury "arose out of" her employment and was compensable.
Member Haynes dissented. Reasoning that the discussion of "normal ingress and egress" to work in Marin was dicta, Haynes disagreed with the majority's reliance on the Marin decision. Haynes also noted that the Marin court had suggested only that walking through a parking lot after work "could be viewed as a condition of claimant's employment." Relying on the Norpac court's statement that the mere fact that an injury occurs in an employer-controlled parking lot does not in and of itself establish compensability, Haynes further argued that the majority had failed to identify a hazard associated with the employer-controlled parking lot (such as poor design or excessive speeding). Finally, contending that claimant's remedy did not rest with the workers' compensation system, Member Haynes asserted that the majority's decision effectively penalized the employer for providing a parking lot for its workers.
EXTENT ("283(7)"):
"POST-RECON" "AP" REPORT INADMISSIBLE
"RAY" APPLIED TO "POST-369" HEARING
In Dean J. Evans, 48 Van Natta 1092 (May 30, 1996), the Board, en banc, held that an attending physician's "post-reconsideration order" medical report was inadmissible at a "post-June 7, 1995" hearing regarding the extent of claimant's unscheduled permanent disability. Citing Joe R. Ray, 48 Van Natta 325 (1996), the Board stated that it had previously held that, under amended ORS 656.283(7), evidence that is not submitted during the reconsideration process is inadmissible at a subsequent hearing about an injured worker's permanent disability. Yet, in light of the court's decision in Precision Castparts Corp. v. Plummer, 140 Or App 227 (1996), the Board noted that its Ray holding had been overruled to the extent that such evidence that was properly admitted at hearing can be considered on review.
Turning to the case at hand, the Board concluded that, since the hearing concerning the extent of permanent disability was held after June 7, 1995, the prohibition on subsequent evidence in amended ORS 656.283(7) was applicable. In doing so, the Board continued to adhere to its holding in Ray in those cases where the hearing was held after June 7, 1995.
Chair Hall included a footnote stating that he continued to believe, for the reasons set forth in his concurrence / dissent in Ray that amended ORS 656.283(7) should not be applied to those cases where the reconsideration record was developed prior to June 7, 1995. However, for purposes of stare decisis, Chair Hall concurred with the Board's decision.
EXTENT:
EVIDENCE LIMITED TO "RECON" RECORD -
EVEN IF "NEW ISSUE" ARISES FROM "RECON"
In Cathy M. Montgomery, 48 Van Natta 1170 (June 11, 1996), the Board held that evidence at hearing regarding the extent of claimant's permanent disability was limited to the record developed during the Director's reconsideration proceeding, even if she was raising an issue arising out of the reconsideration order. At hearing, claimant presented a "post-reconsideration" report from her attending physician and her own testimony in support of her contention that the Order on Reconsideration had incorrectly evaluated her job classification and adaptability.
Relying on amended ORS 656.283(7), and Dean J. Evans, 48 Van Natta 1092 (May 30, 1996), the Board determined that evidence that was not submitted during the reconsideration process was not admissible at a "post-June 7, 1995" hearing concerning a reconsideration order. The Board acknowledged that, under amended ORS 656.268(8), a party was permitted to raise at hearing new issues that "arise out of the reconsideration order." Nevertheless, assuming without deciding that the classification and adaptability issues raised by claimant constituted "new issues" arising out of the reconsideration order, the Board reasoned that amended ORS 656.283(7) did not allow for the introduction at hearing of any new evidence.
EXTENT:
SCHEDULED PPD -
DUE TO "UNSCHED" INJURY
In William L. Fischbach, 48 Van Natta 1233 (June 19, 1996), the Board held that claimant was not entitled to a scheduled permanent disability award for a left arm condition because his inability to repetitively use his arm overhead was not a condition separate from his compensable left shoulder impairment. Relying on Foster v. SAIF, 259 Or 86 (1971), and Alvena Peterson, 47 Van Natta 1331 (1995), claimant contended that his compensable left shoulder injury had also produced a loss of use or function of his left arm and that, therefore, he was entitled to a separate scheduled permanent disability award.
The Board disagreed. Finding that the medical arbiter did not identify any symptoms causing loss of function to claimant's left arm (but rather noted left arm overhead difficulties because of shoulder fatiguability), the Board reasoned that his inability to repeatedly use his arm overhead was simply a positional problem created by his left shoulder impairment. Determining that claimant did not have a separate condition of his left arm, the Board concluded that he was not entitled to a separate scheduled permanent disability award.
Chair Hall dissented. Asserting that the Foster analysis was equally applicable to situations where an unscheduled injury results in a loss of use of a scheduled body part (regardless of whether that disability was due to referred pain from the injured unscheduled body part), Hall contended that, even if claimant was not experiencing referred symptoms in his left arm because of his shoulder injury, he was still unable to repetitively use his arm in certain situations. Since claimant's loss of use to his left arm was due to his compensable left shoulder injury, Chair Hall concluded that claimant was entitled to a 5 percent scheduled permanent disability award.
HEARING PROCEDURE:
"OBJECTIVE FINDINGS" DEFENSE -
CARRIER MUST FIRST RAISE
In Terry Hickman, 48 Van Natta 1073 (May 28, 1996), the Board held that, when a carrier's denial of claimant's injury claim was based on the ground that he had violated a work rule, it was inappropriate for an ALJ to have considered whether the claim was supported by objective findings. In its denial, as well as at the hearing, the carrier contested the compensability of the claim based on an assertion that the injury arose as a result of claimant's violation of work rules.
Reasoning that the parties had neither expressly or impliedly agreed to litigate the issue of whether there was medical evidence supported by objective findings to establish claimant's injury claim, the Board concluded that such an issue should not be addressed. The Board cited Tattoo v. Barrett Business Service, 118 Or App 348, 351-52 (1993), Weyerhaeuser Co. v. Bryant, 102 Or App 423 (1990), Larry R. Burnside, 47 Van Natta 2040 (1995), and Judith M. Morley, 46 Van Natta 882, 883, on recon 46 Van Natta 938 (1994).
Relying on Saedeh K. Bashi, 46 Van Natta 2253 (1994), the Board determined that an ALJ's scope of review was limited to issues raised by the parties. Concluding that the sole issue raised at hearing was whether claimant's injury occurred as a result of a willful violation of work rules, the Board found that there had been no such violation.
"LIER": RESPONSIBILITY
SHIFTING FORWARD -
ACTUAL CONTRIBUTION STANDARD
In Karen J. White, 48 Van Natta 1109 (May 30, 1996), the Board held that, in order to shift responsibility, a presumptively responsible carrier must establish that claimant's subsequent employment exposure actually contributed to a worsening of her underlying condition. In doing so, the Board determined that the holding of Strametz v. Spectrum Motorwerks, 135 Or App 67 (1995), pertained to the "potential contribution" standard of the Last Injurious Exposure Rule (LIER) which is used to establish compensability and presumptive responsibility in the first instance, and did not overturn the long-settled rules for shifting responsibility from a presumptively responsible carrier to a subsequent carrier.
In White, claimant filed an occupational disease claim for a bilateral shoulder condition, asserting that her employment as a violinist for several carriers caused / contributed to her condition. Applying the LIER, the Board initially assigned responsibility to claimant's last employer prior to her seeking medical treatment for her condition. The Board cited Boise Cascade Corp. v. Starbuck, 296 Or 238, 241 (1984), and Meyer v. SAIF, 71 Or App 371, 373 (1984), rev den 299 Or 203 (1985).
Turning to the question of whether responsibility should shift forward to a subsequent carrier, the Board concluded that it was insufficient to merely show that the subsequent employment "could have" caused the disease. In reaching this conclusion, the Board reasoned that the holding of Strametz (which stands for the proposition that, when applying LIER, all a claimant must show to establish a compensable claim is that employment conditions at an Oregon employer "could have" caused the disease), did not pertain to the shifting of responsibility once it has been initially assigned to the presumptively responsible carrier. Applying the "actual contribution" standard set forth in Bracke v. Baza'r, 293 Or 239, 250 (1982), Oregon Boiler Works v. Lott, 115 Or App 70, 74 (1992), and Timm v. Maley, 134 Or App 245, 249 (1995), the Board found that the presumptively responsible carrier remained responsible for the claim because the subsequent employment had not actually contributed to a worsening of claimant's condition.
MEDICAL SERVICE ("225(3)"):
PRELUDE TO TREATMENT FOR "COMP" CONDITION -
"CHANGE" IN PREEXISTING CONDITION
In Michael L. Wofford, 48 Van Natta 1087 (May 29, 1996), the Board, en banc, held that a prescribed medication for a preexisting condition was not a compensable medical treatment for a compensable surgery because the treatment was not prescribed for a change in claimant's preexisting fungal condition, but rather was a merely as an incident to the treatment of his compensable condition. In doing so, the Board applied ORS 656.225(3).
Before proceeding with surgery for claimant's compensable wrist condition, his physician prescribed an oral medication to resolve a preexisting fungal condition. When the carrier denied payment for the medication, claimant requested a hearing. Although he did not contend that the fungal condition was compensable, claimant asserted that the medication was compensable as a prelude to his compensable wrist surgery. Claimant relied on Williams v. Gates, McDonald & Co., 300 Or 278 (1985), which held that, if prescribed medical services constitute an integral part of the total medical treatment for a compensable condition, the medical services are likewise compensable.
The Board rejected claimant's argument. Based on the clear and unambiguous language of ORS 656.225(3), as well as the legislative history, the Board concluded that the Williams holding has been overruled. In other words, the Board determined that, in medical service claims where the service is solely directed to a worker's preexisting condition, the medical service is not compensable unless the service is prescribed to treat a change in the preexisting condition and not merely as an incident to the treatment of a compensable injury or occupational disease.
Turning to an application of the aforementioned standard, the Board found that the fungal condition was a disease or condition that contributed or predisposed claimant to disability or need for treatment which preceded his aggravation claim. Under such circumstances, the Board held that the fungal condition constituted a "preexisting condition" under ORS 656.005(24).
Furthermore, based on the medical evidence, the Board concluded that the anti-fungal medication was solely directed to the preexisting fungal condition. Since the record did not establish that the medication was prescribed to treat a change in that preexisting condition, but rather was merely prescribed as an incident to the treatment of the compensable wrist condition, the Board determined that the medical services claim was not compensable.
OWN MOTION:
"WORK FORCE" -
TAX RETURNS NOT DETERMINATIVE
In Daniel Martushev, 48 Van Natta 1033 (May 8, 1996), the Board held that, in determining whether a claimant is in the work force for purposes of authorizing the reopening of his injury claim for the payment of temporary disability benefits under ORS 656.278, a current tax return is not a prerequisite for proving that he was gainfully employed at the time of his disability. In rejecting claimant's first request for "Own Motion" relief, the Board found claimant's 1993 and 1994 tax returns and wage information insufficient to establish that he was in the work force at the time of his 1996 disability. However, after receiving claimant's 1995 work invoices, as well as an extension request for filing his 1995 tax returns, the Board reconsidered and determined that claimant was in the work force at the time of his current disability.
In reaching its conclusion, the Board acknowledged that, when recommending a denial of time loss because a claimant is not in the work force, a carrier is required to send a letter to the claimant offering suggestions regarding documentation to establish that the claimant was in the work force at the time of disability. See Addendum to Bulletin 2-1994, effective January 1, 1996; OAR 438-012-0020, 438-012-0030, 438-012-0035. Although a current tax return is among the "documentation" suggestions, the Board emphasized that such a submission is not a requisite document for proof of work. Instead, as was present in the case at hand, the Board stated that work invoices, check stubs or wage-withholding statements reflecting dates of work during or prior to the appropriate time frame were sufficient for its review.
OWN MOTION: WORSENING
"273(1)(b)" - NOT APPLICABLE
In Jody Crompton, 48 Van Natta 1183 (June 12, 1996), in an Own Motion Order, the Board held that the provisions of ORS 656.273(1)(b) (which provide that "[i]npatient treatment of the worker at a hospital for the worker's condition from the original injury" does not establish a worsening) are not applicable in determining whether a worsening has been proven to authorize claim reopening under ORS 656.278(1)(a). Although claimant had been hospitalized and undergone surgery for her compensable wrist condition, the carrier opposed reopening of her claim under ORS 656.278(1)(a) because no "worsening" had been established. The carrier cited ORS 656.273(1)(b) for the proposition that inpatient treatment at a hospital does not establish a worsening.
The Board rejected the carrier's assertion. Relying on ORS 656.278(1)(a), Tamera Frolander, 45 Van Natta 968 (1993), and Fred E. Smith, 42 Van Natta 1538 (1990), the Board reiterated that a "worsening" of an Own Motion claim is defined as requiring inpatient or outpatient surgery or other treatment requiring hospitalization. Inasmuch as claimant's Own Motion claim was controlled by ORS 656.278, the Board concluded that the provisions of ORS 656.273 did not apply.
PENALTY / ATTY FEE ("385(5)")
-
ARISING FROM VOCATIONAL "MATTER"
JURISDICTION - DIRECTOR
In Ana J. Calles, 48 Van Natta 1001 (May 13, 1996), the Board held that the Hearings Division lacked authority to consider claimant's request for an attorney fee arising from a carrier's allegedly unreasonable processing of a vocational assistance claim. Following a Director's order finding that a carrier's notice of vocational ineligibility as premature, claimant requested a hearing seeking an attorney fee under ORS 656.382(1) for the carrier's allegedly unreasonable resistance to the payment of compensation.
Relying on ORS 656.385(5) and Andrew D. Lloyd, 48 Van Natta 129 (1995), the Board held that attorney fees and penalties arising out of vocational assistance disputes are subject to the exclusive jurisdiction of the Director. Since review of the vocational assistance "matter" arose under the review jurisdiction of the Director, the Board reasoned that the Director likewise has exclusive jurisdiction over related penalties and attorney fees for such "matters."
Finally, the Board rejected claimant's contention that ORS 656.385(5) was not applicable because the prior Director's order had already become final. Determining that ORS 656.385(5) did not require the Director to "retain" authority over vocational issues, the Board concluded that the Director is authorized to consider penalty and attorney fee requests arising from such "matters" regardless of whether the Director retains authority to reconsider the merits of the vocational "matter."
PENALTY: "268(4)(g)"
BASED ON "INCREASED" PPD
In Frederick W. Van Horn, 48 Van Natta 956 (May 1, 1996), the Board held that a penalty pursuant to ORS 656.268(4)(g) is based on the increased permanent disability granted by an Order on Reconsideration. Noting that the statute provides that the penalty equals "25 percent of all compensation determined to be then due the claimant," claimant argued that the penalty should be based on all compensation awarded by the Order on Reconsideration.
The Board disagreed with claimant's interpretation of the statute. Citing Weyerhaeuser Co. v. Knapp, 100 Or App 615, 619 (1990), the Board reasoned that the phrase "then due" refers to unpaid compensation. Inasmuch as claimant had sought reconsideration of the Notice of Closure, the Board concluded that all permanent disability granted by the Notice was "then due" within 30 days of its issuance. See ORS 656.313; OAR 436-060-0150(7). In any event, had such compensation been unpaid, the Board noted that any nonpayment would support a penalty under ORS 656.262(11) rather than ORS 656.268(4)(g).
Finally, since no other reading of ORS 656.268(4)(g) gave effect to the word "then," the Board concluded that the penalty under that statute was based on the amount claimant's permanent disability award was increased upon reconsideration (provided that claimant was awarded an increase of 25 percent or more and was found to be at least 20 percent permanently disabled).
Chair Hall dissented. Reasoning that the reconsideration process is a de novo process, Hall argued that a reconsideration award is a new determination. Since the statute mandates that the penalty "shall be assessed" based on "all compensation" determined to be then due, Hall contended the entire reconsideration award is the basis for the "268(4)(g)" penalty. Referring to the legislative history, Hall stated that the purpose of the statute was to discourage "low balling" Notice of Closure permanent disability awards. Consistent with that purpose, Hall noted that the statute did not refer to unpaid compensation, but rather to "all compensation." Since the total compensation was not determined until reconsideration, Chair Hall reasoned that the 25 percent penalty must be based on the total permanent disability award granted by the Order on Reconsideration.
PENALTY: UNREASONABLE DENIAL
"POST-HEARING" DEPOSITION -
LEGITIMATE DOUBT NOT DESTROYED
In Randy L. Carter, 48 Van Natta 1271 (June 24, 1996), the Board held that it was not unreasonable for a carrier to maintain its denial following a "post-hearing" deposition from claimant's attending physician which supported the compensability of claimant's right shoulder condition. At the hearing, claimant submitted a report from his attending physician which concluded, without explanation, that claimant's work activities caused his shoulder condition. The hearing was continued for the admission of a "post-hearing" deposition from the attending physician, at which time the physician concluded that claimant's work activities were the major contributing cause of his shoulder condition. Asserting that any legitimate doubt for the carrier's denial was eliminated by the attending physician's "post-hearing" deposition, claimant sought a penalty for an unreasonable denial.
The Board held that the carrier's failure to rescind its compensability denial was not unreasonable. Citing Brown v. Argonaut Insurance Co., 93 Or App 588 (1988), the Board acknowledged that the continuation of a denial in the light of new medical evidence becomes unreasonable if the new evidence destroys any legitimate doubt about liability. Nevertheless, relying on William K. Young, 47 Van Natta 740, 744 (1995), the Board noted that even an uncontradicted medical opinion is not binding on the trier of fact. Moreover, since the hearing had been continued for the admission of the attending physician's deposition, the Board did not consider it unreasonable for the carrier to maintain its denial to await the ALJ's determination of the reliability and persuasive weight to grant the attending physician's "post-hearing" observations and conclusions.
PREMATURE CLOSURE:
EVIDENCE NOT LIMITED TO "AP" OPINION
In William M. Heck, 48 Van Natta 1072 (May 28, 1996), the Board held that, in determining whether a claim was prematurely closed, it was not limited to considering only the opinion from claimant's attending physician. Contesting the closure of his claim, claimant asserted that the closure was improper because his alleged attending physician had not been asked to respond to a carrier-arranged medical examiner's report.
The Board rejected claimant's argument. Citing Charlotte A. O'Neal, 47 Van Natta 1994 (1995), and Patricia M. Knupp, 46 Van Natta 2406 (1994), the Board found nothing which restricted its consideration of opinions regarding medically stationary status to those opinions rendered by an attending physician. Consequently, based on the persuasive medical evidence, the Board concluded that claimant's compensable condition was medically stationary when the claim was closed.
Finally, the Board declined to address claimant's contention that placing him under the provisions of a Managed Care Organization (MCO) violated his "equal protection" rights under Article I, section 20 of the Oregon Constitution. Since the issue at hand pertained to premature closure and the "MCO" provision contested by claimant (ORS 656.245(4)(a)) pertained to medical treatment, the Board reasoned that it was unnecessary to address claimant's constitutional challenge. In any event, noting that groups created by virtue of a challenged statute are not considered to be classes for the purposes of "equal protection" arguments, the Board stated that such a challenge would be rejected. The Board cited Sealey v. Hicks, 309 Or 387, 397 (1990).
STANDARDS:
"BULLETIN 242" -
NOT INVALID RULE
In Jeana Larson, 48 Van Natta 1278 (June 24, 1996), the Board held that the Director's Bulletin No. 242 (which prescribes the "straight leg raising" ("SLR") method for testing the validity of lumbar flexion, as well as provides for the notation of invalid measurements in the examining physician's report) did not constitute an invalid rule because the bulletin merely prescribed a specific application of the validity criteria set forth in validly adopted rules. Citing Burke v. Public Welfare Div., 31 Or App 161 (1977), the Board identified the determinative question as whether the Bulletin explains the necessary requirements of an existing rule (in which case it need not be promulgated as a rule) or whether the Bulletin interprets or amplifies an existing rule (in which case it would be subject to rulemaking requirements).
Relying on former OAR 436-35-005(5), and 436-35-007(4), the Board noted that the Director's rules provide that only the methods described in the AMA Guides to the Evaluation of Permanent Impairment (3rd ed., 1990) may be used to establish impairment under the "standards" and that the Director may prescribe by bulletin the methods to measure and report impairment. The Board reasoned that the Director's Bulletin No. 242 establishes the same method for determining validity of lumbar flexion as provided in the AMA Guides (which requires a comparison of tightest SLR with hip flexion plus hip extension which must be within 10 degrees for a valid measurement), with the additional requirement that the examiner note any measurements that do not meet the validity criterion. Concluding that the bulletin prescribed a specific application of the validity criteria as set forth in a validly adopted rule, the Board determined that the bulletin's provisions need not have been promulgated as a rule.
STANDARDS:
TEMPORARY RULE -
NO REMAND -
DIRECTOR FINDS DISABILITY ADDRESSED
In Terry J. Hockett, 48 Van Natta 1297 (June 27, 1996), the Board held that remand to the Director for the adoption of a temporary rule was not appropriate when the Director had previously found that claimant's permanent disability was adequately addressed by the disability standards. An Order on Reconsideration awarded 35 percent scheduled permanent disability for loss of use or function of the left foot based on a loss of sensation, flexion, instability, and an inability to walk or stand for more than 2 hours in an 8-hour period. Contending that his hypersensitivity of the left foot constituted an impairment not rated under the standards, claimant sought remand to the Director for the adoption of a temporary rule.
The Board concluded that it was without authority to remand to the Director under ORS 656.726(3)(f)(C). In doing so, the Board distinguished Gary D. Gallino, 46 Van Natta 246 (1994), where remand for a temporary rule had been granted when the Director had not made an express finding that claimant's disability was not addressed by existing standards. In contrast, the Board noted that the Director's Order on Reconsideration had made such a finding.
Furthermore, the Board rejected claimant's argument that, based on the Director's adoption of temporary rules in other claims for cold sensitivity, remand was warranted. Noting that the temporary rules had involved workers with cold sensitivity of the hands (rather than the feet), the Board was not persuaded that such rules would be applicable to claimant. Moreover, citing Wanda E. Scanlon, 47 Van Natta 1464 (1995), the Board reasoned that temporary rules addressing individual workers' impairment was not inconsistent with the Director's failure to adopt a temporary rule for this claimant.
Finally, the Board distinguished Omar Mendoza, 48 Van Natta 952 (May 1, 1996), and Dennis L. Martindale, 47 Van Natta 299 (1995), where it had determined that remand for a temporary rule had been appropriate. In Martindale, the Board noted that the Director had not made an express finding that the existing standards addressed the claimant's disability. Although the Director in Mendoza had expressly found no permanent impairment "as ratable under the standards," the Board stated that there had not been a finding whether the claimant's loss of grip strength was covered by the standards and there had been no permanent disability award granted by the Order on Reconsideration. In contrast to Mendoza, the Board reasoned that the Director had identified several impairments in awarding permanent disability and had expressly found that claimant's permanent disability was adequately addressed by the standards.
Chair Hall dissented. Noting that the Order on Reconsideration had not included any acknowledgment of the existence of claimant's hypersensitivity condition which had been documented by the medical arbiter, Hall considered the Director's "boilerplate" finding that claimant's disability was adequately addressed by the standards was insufficient to constitute an "express finding." Alternatively, even if the Director had considered claimant's hypersensitivity condition, Hall found the medical arbiter's opinion sufficient to establish a specific impairment that had not otherwise been addressed in the standards. Finally, in light of the Director's adoption of temporary rules in similar claims, Chair Hall contended that it was appropriate to remand for the promulgation of a temporary rule.
TTD ("262(4)(f))":
"14-DAY" RETROACTIVE AUTHORIZATION -
NOT "ABSURD & UNJUST"
In Debbie I. Jensen, 48 Van Natta 1235 (June 19, 1996), retroactively applying ORS 656.262(4)(f), the Board held that claimant's attending physician's retroactive authorization of temporary disability (TTD) under an open claim could not exceed 14 days. Relying on Section 66(6) of SB 369, claimant contended that the amended statute was not applicable because it involved a procedural time limitation. Alternatively, claimant asserted that retroactive application of the statute produced an absurd and unjust result or was unconstitutional.
The Board rejected claimant's contentions. Reasoning that the statute defined and regulated the circumstances under which TTD was payable during an open claim, the Board determined that the statute did not involve a procedural time limitation. Alternatively, because prior law had provided for no time limit pertaining to the retroactive effectiveness of an attending physician's TTD authorization, the Board concluded that amended ORS 656.262(4)(f) did not "extend or shorten" a procedural time limit. Consequently, the Board held that Section 66(6) did not prohibit retroactive application of the amended statute.
The Board also concluded that retroactive application of the statutory amendment would not produce an absurd and unjust. Noting that under prior law an attending physician's authorization was still required for the payment of TTD on an open claim (former OAR 436-60-036(1)), the Board concluded that the amended statute did not create an entirely new procedure for obtaining TTD. Since claimant could have obtained contemporaneous authorization for TTD during the period in question, the Board rejected claimant's argument that retroactive application of the statute would cause an absurd and unjust result.
Finally, the Board disagreed with claimant's constitutional challenges to amended ORS 656.262(4)(f). Relying on Liberty Northwest Ins. Corp. v. Yon, 137 Or App 413, 417 (1995), and Kathleen M. Butler, 47 Van Natta 2202, 2204 (1995), the Board determined that retroactive application of the amended statute would not deprive claimant of any vested right to TTD. Furthermore, the Board reasoned that the legislature was authorized to retroactively impose limitations on the entitlement to TTD during an open claim even to cases already in litigation. The Board cited Whipple v. Howser, 291 Or 475, 480 (1981), and State ex rel Borisoff v. Workers' Comp. Board, 104 Or App 603, 607 (1990)
Chair Hall dissented. Analogizing the case to Rick A. Webb, 47 Van Natta 1550 (1995), Chair Hall argued that the majority was retroactively imposing a form requirement on claimant and his physician which neither could have complied at the time of the time loss authorization. Under such circumstances, Hall contended that it would be absurd and unjust to retroactively impose the 14-day limitation of amended ORS 656.262(4)(f).
TTD ("268(3)"):
APPLICABLE ONLY TO "PROCEDURAL" TTD
In Ivan E. Dame, 48 Van Natta 1228 (June 19, 1996), the Board held that, when determining claimant's entitlement to substantive temporary disability (TTD), the provisions of ORS 656.268(3) were not applicable. Asserting that ORS 656.268(3)(d) (which provides that TTD shall continue until lawfully suspended, withheld, or terminated under ORS 656.262(4) or any other statutory provision) eliminates the distinction between procedural and substantive entitlement to TTD, claimant contended that he was entitled to TTD beyond his medically stationary date through the date of claim closure.
The Board disagreed. Citing SAIF v. Taylor, 126 Or App 658 (1994), and Lebanon Plywood v. Seiber, 113 Or App 651, 653-54 (1992), the Board concluded that, following claim closure, a worker is substantively entitled to TTD only until the medically stationary date. The Board also determined that ORS 656.268(3)(d) addresses a claimant's procedural entitlement to TTD during an open claim. The Board relied on Fazzolari v. United Beer Distributors, 91 Or App 592, 595 (1988), Jimmie G. Clark, 45 Van Natta 2308, 2309, n 1 (1993), and Soledad Flores, 43 Van Natta 2504 (1991). Finally, the Board found nothing in the 1995 amendments to ORS 656.268 that indicated an intention to eliminate the distinction between substantive and procedural entitlement to TTD nor anything in section (3)(d) which would authorize the payment of TTD beyond the medically stationary date.
ATTORNEY FEE ("386(1)"):
NOT FOR DIRECTOR'S "245" ORDER
Bailey v. Boeing Company, 141 Or App 200 (May 22, 1996). The court affirmed the Board's order in Jacquelyn E. Bailey, 46 Van Natta 1789 (1994), previously noted 13 NCN 5:4, which had held that claimant was not entitled to a carrier-paid attorney fee under ORS 656.386(1) for her counsel's services before the Director which had resulted in a determination that claimant could select another attending physician without insurer or Director approval. Conceding that she was not entitled to an attorney fee award under the retroactively applicable amendments to ORS 656.386(1), claimant contended that the amendments could not constitutionally apply to her. More particularly, arguing that she was entitled to an award based on SAIF v. Allen, 320 Or 192, 203 (1994), claimant asserted that the legislature could not eliminate her entitlement to the award through the retroactive statutory changes without violating the constitutional prohibition on impairment of contract or unilaterally destroying a "vested right."
Concluding that claimant was not entitled to an attorney fee award under the former version of the statute, the court rejected her constitutional argument from the outset. Citing O'Neal v. Tewell, 119 Or App 329, 332 (1993), the court stated that a claimant was entitled to an attorney fee award under the former version of the statute for obtaining compensation without a hearing only in an appeal "'from an order or decision denying the claim for compensation.'" The court further noted that it had applied the same rule in SAIF v. Allen, 124 Or App 183, 185 (1993) rev'd on other grounds 320 Or 193, 200 n 8 (1994), a decision which the Supreme Court had expressly declined to disturb. Inasmuch as there was no order or decision denying a claim for compensation (the Director had ruled in favor of claimant), the court determined that she was not entitled to an attorney fee award under the pre-1995 version of ORS 656.386(1).
COURSE & SCOPE:
EXCEEDING "LIFTING" INSTRUCTIONS -
NOT DISPOSITIVE
Andrews v. Tektronix, Inc., 323 Or App 154 (May 9, 1996). The Supreme Court reversed the Court of Appeals decision, 134 Or App 628 (1995), which had affirmed the Board's order in Brian W. Andrews, 46 Van Natta 1622 (1994), that found that claimant's violation of his employer's "lifting" restrictions placed his back injury outside of the course and scope of his employment. The Court addressed the question of whether a worker's failure to follow an employer's instructions may bar compensation of an ensuing injury.
Claimant, a supply deliverer and plumber's assistant with a prior low back injury, was instructed by his employer not to perform heavy lifting. When claimant subsequently injured his low back while lifting heavy equipment, the carrier denied the claim as arising outside the boundaries of his employment. The Board agreed. Relying on Larson, 1A Workmen's Compensation Law, Section 31.00, 6-10 (1995), the Board concluded that claimant's violation of the employer's heavy lifting rule involved a prohibited overstepping of the boundaries defining his ultimate work and, as such, his injury occurred outside of the course and scope of his employment. The Court of Appeals affirmed.
Contending that claimant's "lifting" violation demonstrated that his injury arose from his rejection of his employer's right of direction and control, the carrier argued that he had lost his status as a "worker." The Court disagreed. Referring to its opinions on at-work "horseplay" (as an example, Stark v. State Industrial Acc. Com., 103 Or 80, 98 (1922), the Court reasoned that it is inescapable that a general rule denying compensation for injuries sustained as the result of a worker's failure to follow an employer's instructions is not compatible with the Workers' Compensation Act.
After examining Professor Larson's rule (which purports that compensability should be denied only when a certain type of prohibition - a "prohibited overstepping of the boundaries defining the [claimant's] ultimate work" - is involved), the Court concluded that the rule does little, if anything, to alter the basic work-connectedness test of compensability that the workers' compensation statute requires. In other words, the Court determined that the rule merely states that, regardless of whether it is forbidden or condoned, an activity that is outside the boundaries of a claimant's job is not part of the claimant's job.
Turning to the Board's decision, the Court observed that the Board had treated its determination that claimant had disobeyed his employer's instructions as a complete substitute for an analysis of work-connectedness. Reasoning that such an approach was unduly simplistic and carried an implication of blameworthiness (a function of fault), the Court held that an employee's violation of an employment rule does not render his or her claim per se noncompensable. Instead, the Court instructed that a determination of whether claimant was engaged in an activity that was within the boundaries of his ultimate work must be made by evaluating all the factors that are pertinent to the question of work-connectedness (such as the degree of connection between what the worker is authorized to do and is forbidden to do, the degree of judgment and latitude normally given the worker, workplace customs and practices, the relative risk to the worker when compared to the benefit to the employer, and, when a worker's failure to follow a work-defining instruction is taken into consideration, the manner in which those instructions were conveyed, and the worker's consequent perception of the instruction's purpose and scope), and weighing those factors in the light of the policy underlying the Workers' Compensation Act.
CLAIM PRECLUSION:
AMENDED "262(10)" -
"MESSMER" NOT OVERRULED
Deluxe Cabinet Works v. Messmer, 140 Or App 548 (May 1, 1996). The court affirmed the Board's order in Richard J. Messmer, 45 Van Natta 874 (1993), which held that the carrier was precluded from contesting compensability of a condition on which a prior uncontested permanent disability was based. In reaching its conclusion, the court determined that amended ORS 656.262(10) did not overrule the holding in Messmer v. Deluxe Cabinet Works, 130 Or App 254 (1994), rev den 320 Or 507 (1995).
Relying on the amended statute and legislative history, the carrier argued that it was allowed to challenge the compensability of conditions for which compensation had been awarded even though it had failed to appeal a prior disability award. Acknowledging that the statute does not refer to the failure to challenge a determination order (but rather refers only to the payment of benefits), the carrier insisted that the legislature intended to permit a "post-award" challenge.
The court disagreed with the carrier's reasoning. To begin, the court noted that the amended statute said nothing about the preclusive consequences of a carrier's failure to appeal a determination order, but rather referred only to the "payment of permanent disability benefits." Reasoning that the payment of benefits was one thing and failing to appeal a determination order was another, the court declined to add the phrase "or failure to appeal a determination order" to the term "payment of permanent disability benefits" in the statute. Moreover, since the statute did not address a carrier's failure to challenge a determination order, the court concluded that its holding in Messmer was unaffected by the amended version of ORS 656.262(10).
Finally, the court rejected the carrier's contention that its reading of the statute ignored the legislature's manifest intentions. First, because the statute could not be read to accomplish the carrier's interpretation, the court responded that it was not authorized to rewrite the statute's language. Second, after examining the legislative history, the court determined that it was apparent that the legislature proceeded from an inaccurate understanding of its Messmer decision and enacted language that changed nothing of substance of that decision. Although acknowledging and respecting the legislature's constitutional prerogative to amend statutes in order to alter the effect of prior judicial decisions, the court concluded that it could not rewrite the statute to give effect to what it might speculate the legislature would have intended had it correctly read its prior decision. In support of its conclusion, the court cited Monaco v. U.S. Fidelity & Guar., 275 Or 183, 188 (1976).
COMPENSABILITY ("266"):
MEDICAL OPINION -
MORE THAN "NATURAL INFERENCE"
Bronco Cleaners v. Velazquez, 141 Or App 295 (May 29, 1996). The court affirmed the Board's order in Estela Velazquez, 47 Van Natta 1117 (1995), that set aside a carrier's occupational disease denial of claimant's dermatitis condition. Asserting that the Board's decision was based solely on a "natural inference" drawn from the temporal relationship between claimant's condition and her employment, the carrier argued that the decision was contrary to ORS 656.266 (which provides that a worker cannot carry the burden of proving an injury / occupational disease merely by disproving other possible explanations of how the injury / disease occurred).
The court disagreed with the carrier's assertion. Had claimant merely demonstrated that before she worked for the employer, she did not have dermatitis, and now she does, the court agreed that such proof would be legally insufficient. Nevertheless, noting that the Board's conclusion had been based on a physician's opinion supporting a nexus between claimant's condition and her work environment, the court reasoned that claimant's evidence went beyond a chronological connection. Although claimant's physician had applied a methodology of exclusionary diagnosis and had expressed difficulty in identifying the specific agent at work that caused the condition, the court concluded that claimant's evidence demonstrated a pattern of diminishment and enhancement of the condition that correlated to the existence or lack of exposure to the work place. Determining that the Board's compensability finding was supported by substantial evidence and concluding that the Board's holding was not contrary to ORS 656.266, the court held that the Board had not erred.
DEATH BENEFITS ("218(4)"):
PERSONAL REP (NO BENEFICIARIES) -
CAN'T APPEAL PPD AWARD
Edwards v. Cherry City Electric, Inc., 141Or App 578 (June 26, 1996). The court affirmed the Board's order in Clifton Edwards (DCD), 47 Van Natta 414 (1995), which held that the deceased worker's personal representative lacked authority to contest a "post-death" Determination Order permanent disability award. Relying on ORS 656.218(4), (5), and Trice v. Tektronix, 104 Or App 461 (1990), the Board reasoned that the decedent was not survived by a beneficiary who could request reconsideration or a hearing on a permanent disability award for a deceased worker.
The court agreed. Because the decedent left no statutory beneficiaries who were entitled to pursue review of his claim under ORS 656.218, the court concluded that the personal representative was not someone who could request reconsideration of the Department's award. The court recognized that such a conclusion appeared anomalous because it seemed to leave no one in a position to pursue burial benefits under ORS 656.218(5). Nevertheless, after examining the legislative history, the court reasoned that, if a burial benefit is to be paid, the discretion to make such a payment appears to rest with the carrier. Since there is apparently no basis for the Department or Board to order the payment of a burial allowance (which is the only award that a personal representative could seek), the court reasoned that there is no need to give a personal representative the right to pursue claims under ORS 656.218.
INMATE INJURY FUND:
CLAIM FILING -
DEPT. OF GENERAL SERVICES
Kemery v. SAIF, 141 Or App 314 (May 29, 1996). The court affirmed the Board's order in Warren Kemery, 47 Van Natta 649 (1995), which held that an inmate's injury claim under ORS 655.505 et seq was untimely filed and that the Department of General Services had not abused its discretion in declining to waive the filing deadline. Noting that he had provided a written injury report to his prison supervisor within 90 days of his injury, claimant contended that he should not be held responsible for the safety officer's failure to forward the claim to the Department within the requisite time period.
The court disagreed. Relying on ORS 655.520(2), and (3), the court concluded that claimant's injury claim was required to be filed with the Department of General Services. Since claimant's prison supervisor was an employee of the Department of Corrections, the court determined that the claim was not filed with the Department of General Services until it was forwarded to the department six months later.
In reaching its conclusion, the court acknowledged the apparent inequity of holding claimant responsible for the safety officer's negligence. Nevertheless, the court reasoned that it was apparent that the legislature intended to make inmates responsible for ushering the appropriate forms through the Department of Corrections to timely reach the proper agency. Although the constraints of prison life might make that an unfair burden, the court concluded that the decision was for the legislature to make.
Finally, the court found no abuse of discretion in the Department's refusal to waive the 90-day deadline. See ORS 655.520(3). Noting that the Department had adopted a policy that it would recognize only physical or mental incapacity as a "good and sufficient" reason for failing to file a timely claim, the court disagreed with claimant's argument that his "physical[] incapitat[ion]" (incarceration) constituted a "good and sufficient reason" for missing the deadline. The court relied on Dept. of Justice v. Bryant, 101 Or App 226, 229, rev den 310 Or 205 (1990).
REMAND:
"SB 369" RETROACTIVELY APPLIED
Liberty Northwest Insurance Corporation v. Meyers, 141 Or App 135 (May 15, 1996). The court, per curiam, reversed the Board's order in Stanley Meyers, 47 Van Natta 829 (1995), which had held that the Hearings Division had jurisdiction over a medical treatment dispute and had found that claimant's chiropractic treatments were appropriate. Citing Willhite v. Asplundh Tree Experts, 136 Or App 120 (1995), rev den 322 Or 645 (1996), the court remanded for reconsideration.
Reynolds Metals v. Johnson, 141 Or App 134 (May 15, 1996). The court, per curiam, reversed the Board's order in Lee J. Johnson, 47 Van Natta 763 (1995), which had held that a carrier was precluded from denying a previously accepted right shoulder condition and that claimant's surgery was appropriate medical treatment. Citing Volk v. America West Airlines, 135 Or App 565 (1995), rev den 322 Or 645 (1996), the court remanded for reconsideration.
"SUBJECTIVITY" DETERMINATION:
APPEAL OF ALJ'S ORDER - COURT
Lankford v. Copeland, 141 Or App 138 (May 22, 1996). The court reversed the Board's order in Cindy Lankford, 46 Van Natta 149 (1994), which had held that claimant was not a subject worker because her employment was casual under ORS 656.027(3). In doing so, the court concluded that the Board lacked appellate authority to review an ALJ's order which had affirmed a Director's determination that claimant was not a subject worker.
Relying on ORS 656.704(3), the court reasoned that the essential factor in determining whether review of a Director's order is by the Board or court is whether the matter concerns a claim, which in turn means that a "worker's right to receive compensation, or the amount thereof, are directly in issue." Concluding that a claimant's right to receive compensation and the amount thereof only become directly in issue once the Director decides whether claimant may seek compensation under the Workers' Compensation Act (at which point the Director will assign the claim to a carrier for processing), the court held that the Director's determination, as affirmed by the ALJ, was not a manner concerning a claim. As such, the court determined that review of the ALJ's order was pursuant to ORS 183.482. See ORS 656.704(2).
Finally, the court noted that the ALJ's order had incorrectly notified the parties that review should be directed to the Board. Reasoning that the erroneous notice affected a substantial right of claimant, the court remanded to the Board with instructions to dismiss the request for review and remand to the Director for issuance of a corrected order. The court cited Callahan v. Employment Division, 97 Or App 234 (1989).
In June 1995 most of the Board's Administrative Law Judges received formal mediation training through the Institute for Conflict Management. Helping parties settle cases has been something the Board has done for years--both on an ad hoc basis as well as through mass settlement conferences. With formal mediation the Board is now able to offer the parties the help of trained mediators who can devote as much time as a particular case may need. Most mediations result in settlement. Practitioners are viewing mediation as a very positive alternative to litigation. Mediation saves time and expense, removes uncertainty, and allows the parties a chance to create a resolution of their case that they feel is in their best interests. The demand for mediation has been growing, and the Board is committing more resources to the program and meeting regularly to help the program evolve. Following are answers to some frequently asked questions:
1. What types of cases are good to mediate?
Cases particularly suited for mediation include: (a) stress cases and other complex occupational disease claims; (b) cases that have been around for a long time and have both accepted and denied conditions; (c) cases which also include claims under ORS chapter 659, the ADA and other employment related issues; and (d) cases which have a claim for permanent total disability benefits.
2. Is mediation voluntary or mandatory and what if the case doesn't settle?
The Board's program is completely voluntary; all parties must want to mediate their dispute. If a case does not settle, it is simply put back on the docket. The ALJ who mediated the case will not hear the case, and there is no communication between the mediator and the trial ALJ. The file will simply reflect that a mediation was held and that the case did not settle.
3. How do I arrange mediation?
Contact Vicki Sanders, assistant to the Presiding ALJ, at (503) 378-3308, ext. 227, in the Salem Hearings Division. You will be assigned an ALJ with training in mediation. Requests for a specific ALJ will be honored whenever possible. Mediations are usually held at one of the WCB offices. Vicki will need the case name and number, the name of the trial ALJ, and the date of the hearing, if any. Please provide two or three mutually agreeable dates for holding the mediation. If you and opposing counsel have agreed on a specific mediator, you may call that ALJ or his/her secretary directly to schedule a mediation.
4. How soon will my mediation be scheduled?
This depends upon the schedule of the particular mediator you want. Mediation will be scheduled as soon as possible. Please allot for as much advance notice as possible--to be done properly, mediation requires preparation by all parties and the mediator. Some mediators require confidential position papers in advance, as well as enough time to have phone contact with the parties before the day of mediation.
5. Who is present at the mediation?
Most mediators require that as many of the interested parties as possible attend. This usually includes claimant, claimant's counsel, defense counsel, an employer representative, the claims adjuster and anyone else with ultimate settlement authority. In addition, the claimant's spouse or a close family member may attend. However, please do not bring other lay or expert witnesses.
6. Miscellaneous.
A case taken off the docket for mediation is treated as a postponed case. If the mediation precedes the hearing date, then the case stays on the docket unless it settles.
Mediation IS NOT a device for obtaining discovery or for obtaining postponement. All parties are expected to approach mediation in good faith and make a commitment to work hard to resolve the case.
Depending on the complexities, a mediation may take several hours, an entire day, or even longer before final resolution is achieved. The mediator is committed to staying with the process so long as the parties are making progress.
The Board hopes that this information is helpful to you. Please feel free to call Vicki Sanders in Salem if you have other questions.
INPUT REQUESTED FOR MEDIATION GUIDELINES
As part of the ongoing development of the Board's mediation program, the Hearings Division is considering publishing guidelines concerning mediations--for example, mediator qualifications, standards of conduct for mediators and attorneys, and confidentiality of communications. Some or all of such guidelines may eventually become rules adopted by the Board. The Board welcomes your input regarding this matter. If you have any ideas about appropriate guidelines (which, again, might ultimately become rules) concerning mediation, please submit them in writing to the Presiding Administrative Law Judge by August 15, 1996.
CDA TIPS
PROCESSING DCS / STIPS
Since the adoption of amended ORS 656.236(1)(b) (which permits the waiver of the 30-day "cooling off" period where a claimant is represented by an attorney), the Board has been receiving an increasing number of Claim Disposition Agreements (CDAs) accompanied by Disputed Claim Settlements (DCSs) or Stipulations (Stips). In the interests of expediting the processing of such agreements, the CDA Unit offers the following suggestions.
Assuming that the CDA (containing a "waiver" provision) does not require supplementation or revision, it will normally receive Board approval within 10 days of its receipt. Therefore, if the parties wish to receive ALJ and / or Board approval of their DCS or Stip in advance of the CDA, the DCS / Stip must be filed / approved before filing of the CDA. Otherwise, on Board receipt of the CDA, all proceedings (including consideration of a DCS / Stip) will be stayed. See OAR 438-009-0030(1).
If the parties do not want DCS / Stip approval prior to CDA approval, they should mail the DCS / Stip and CDA to the Board's CDA Unit. The DCS / Stip will be forwarded to the appropriate forum and, assuming CDA approval, will be mailed simultaneously to the parties. When sending such agreements in tandem, the parties should include in the DCS / Stip a provision acknowledging that a CDA has been filed. See OAR 438-009-0005(5), 438-009-0010(8).
Adherence to these principles will assist the CDA Unit in processing your agreements efficiently and expeditiously. Should you have any questions or desire further information, you are encouraged to contact Nancy Coffelt, the Board's CDA Coordinator, at 378-4238 (ext:356).
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