ATTORNEY FEE ("386(1)"):
RESPONSE TO HEARING REQUEST -
NO "DENIED CLAIM"
InTimothy E. Knight, Jr., 48 Van Natta 1718 (August 26, 1996), the Board held that there was no "denied claim" warranting an assessed fee under ORS 656.386(1), where the carrier paid all benefits due for the compensable condition and the record did not establish that the carrier refused to pay compensation on the "express ground" that the allegedly denied condition was not compensable or did not give rise to an entitlement to compensation. The Board found that the carrier's response to claimant's hearing request, which stated that the "Administrative Law Judge lacks jurisdiction to provide any relief," was similar to the carrier's response in Michael Galbraith, 48 Van Natta 351 (1996) that the claimant was "entitled to no relief." In both cases, the Board found no express refusal to pay compensation on the ground that the condition was not compensable or otherwise did not give rise to an entitlement to compensation.
Chair Hall specially concurred, explaining that he was compelled by stare decisis to follow the holding in Galbraith, despite his disagreement with that decision. Hall believed that the carrier's responsive pleading that the ALJ lacked jurisdiction to provide relief constituted an express refusal to pay compensation on the ground that the injury or condition otherwise did not give rise to an entitlement to compensation.
CDA ("236(1)(b)"):
ADVANCE - UNREPRESENTED WORKER
BOARD W/O AUTHORITY TO APPROVE
In Ronald F. Glascock, 48 Van Natta 1570 (July 19, 1996), in conducting its review of a Claim Disposition Agreement (CDA) under ORS 656.236, the Board held that it was not authorized to approve a stipulation which provided for an advance of CDA proceeds to an unrepresented claimant prior to the expiration of the 30-day waiting period of ORS 656.236(1)(a)(C). Citing ORS 656.236(1)(b), the Board concluded that, since claimant was unrepresented, the 30-day waiting period could not be waived. Likewise, the Board reasoned that it was without authority to approve an advance of the CDA proceeds before expiration of the 30-day waiting period.
In reaching its conclusion, the Board noted that there was no prohibition precluding a carrier from providing such an advancement. Although the issue was not before it, the Board further stated that, in the event that such a CDA was subsequently not approved, a method to recoup the advance would be available through the "offset" provisions of ORS 656.268(13).
CDA: CONSIDERATION -
NOT "PAST" CDA / EMPLOYMENT RELEASE
In Antonio Resendez, 48 Van Natta 1648 (August 8, 1996), the Board disapproved several Claim Disposition Agreement (CDAs), which provided that the consideration for the dispositions was a previously approved Disputed Claim Settlement (DCS) and a resignation of employment. Relying on Viola Slover, 46 Van Natta 121 (1994), and Jerry H. Foss, 43 Van Natta 48 (1991), the Board concluded that, since the CDAs provided for previously paid consideration, they violated OAR 438-009-0022(3)(j) and 438-009-0020(1) in that a separate amount of consideration for each claim had not been provided and that such consideration was "illusory." The Board further noted that, since the consideration flowed from an employment termination agreement which pertains to a matter outside of its statutory purview, it was without authority to approve the dispositions. See Sandra Pickett, 48 Van Natta 1495 (July 9, 1996).
Finally, the Board found that the summary pages for each of the CDAs referred to the same series of injury dates and claim numbers. Likewise, the Board determined that a separate set of postcards had not been provided for each CDA. Reasoning that each CDA must have its own separate summary page with the required information pertaining to only one claim and a separate set of postcards, the Board objected to those portions of the CDAs. The Board relied on OAR 438-009-0022(1), (3)(c), & (d), 438-009-0028, and Julie K. Gasperino, 45 Van Natta 861 (1993).
CDA:
NO RELEASE OF "PREFERRED WORKER" ELIGIBILITY
In Richard L. Herzog, 48 Van Natta 1682 (August 16, 1996), the Board approved an amended Claim Disposition Agreement (CDA), which contained a provision clarifying that claimant was not releasing his eligibility for preferred worker status. Relying on ORS 656.622(4)(c), the Board noted that a claimant is prohibited from waiving eligibility for preferred worker status pursuant to a CDA. Inasmuch as the amended CDA clarified that claimant did not and could not waive his "preferred worker" eligibility, the Board concluded that the disposition was approvable.
In reaching its conclusion, the Board emphasized that its decision should not be interpreted as an approval of language in the agreement providing that former OAR 436-110-280(6)(e) allowed the waiver of preferred worker status apparently in "conflict" with ORS 656.622(4)(c). Reasoning that the rule pertained to disputed claim settlements under ORS 656.289(4), the Board determined that the rule was inapplicable to CDAs and the "conflict" language in the amended CDA was irrelevant and superfluous.
CDA:
TERMINATION AGREEMENT -
MATTER OUTSIDE BOARD AUTHORITY
In Sandra Pickett, 48 Van Natta 1495 (July 9, 1996), the Board held that a Claim Disposition Agreement (CDA) was approvable despite claimant's failure to also sign an employment termination agreement. Following its receipt of an executed CDA, the Board issued an addendum letter seeking additional information regarding claimant's present work status. Thereafter, the parties announced that the carrier would not sign an addendum because claimant had refused to sign an employment termination agreement.
Relying on Karen A. Vearrier, 42 Van Natta 2071 (1990), the Board reiterated that, since an employment termination agreement pertained to a matter outside of ORS Chapter 656, it was without authority to approve such an agreement under ORS 656.236(1). However, noting that the proposed CDA contained no "employment termination" provision, the Board reasoned that the agreement was not unreasonable as a matter of law. Furthermore, the Board found that neither party had sought disapproval of the CDA within 30 days of its submission nor had there been an allegation of an intentional misrepresentation of material fact. Determining that there was no statutory basis to disapprove the agreement, the Board approved the CDA.
In reaching its conclusion, the Board rescinded its previous request for an addendum. Since the CDA provided that claimant had been released to modified work but had not returned to the work force due to no available work, the Board concluded that OAR 438-009-0022(4)(d) (which requires that information regarding whether the worker has ever been able to return to the work force following the industrial injury or occupational disease) had been satisfied.
CLAIM PRECLUSION:
PRIOR PPD AWARD - BAR TO LATER DENIAL
"MESSMER" APPLIED / DISTINGUISHED
In Patricia A. Landers, 48 Van Natta 1720 (August 26, 1996), the Board held that a carrier was precluded from contesting the compensability of claimant's left knee chondromalacia condition because it had failed to contest a prior permanent disability award for a compensable left knee condition which was partially based on the chondromalacia condition. Following the carrier's acceptance of claimant's left knee injury, the claim was subsequently closed with a permanent disability award for surgery and lost range of motion. "Pre-closure" impairment findings had attributed "moderate impairment" to claimant's chondromalacia condition.
Relying on the aforementioned evidence, the Board determined that the prior permanent disability award was based, in part, on claimant's chondromalacia condition. Citing Deluxe Cabinet Works v. Messmer, 140 Or App 548 (1996), the Board reasoned that, because the carrier had failed to contest the prior permanent disability award for claimant's unaccepted left knee chondromalacia condition, it was prohibited from subsequently denying the compensability of that condition. The Board also cited Roger L. Wolff, 48 Van Natta 1197 (1996).
In David L. Reed, 48 Van Natta 1723 (August 26, 1996), the Board held that a carrier was not precluded from contesting the compensability of claimant's current degenerative low back condition because a prior, unappealed permanent disability award had been based on his accepted low back strain. Relying on Deluxe Cabinet Works v. Messmer, 140 Or App 548 (1996), claimant contended that, since degenerative problems were identified before the prior claim closure, the carrier's denial was prohibited because the prior Determination Order (DO) had "probably" rated the degenerative disease.
Although agreeing that degenerative problems had been identified before claim closure, the Board found no evidence from the DO or the evaluator's worksheet that claimant's prior permanent disability award had included any compensation for the degenerative condition. The Board noted that the worksheet referred to the accepted condition as a lumbar strain and indicated a 5 percent impairment award based on reduced range of motion. Relying on "pre-closure" impairment findings which concluded that claimant's preexisting degenerative conditions had not aggravated due to the strain, the Board concluded that the findings (which had formed the basis for the permanent disability award) were attributable to the accepted strain and not the preexisting conditions. The Board cited Olson v. Safeway Stores, Inc., 132 Or App 424, 428, n. 1 (1995), and Glow I. Meissner, 47 Van Natta 1486 (1995).
CLAIM PROCESSING ("262(6)(d)"):
OBJECTION TO ACCEPTANCE NOTICE
HEARING REQUEST NOT A "WRITTEN COMMUNICATION"
In Shannon E. Jenkins, 48 Van Natta 1482 (July 9, 1996), the Board, en banc, held that a claimant's "communication in writing" under ORS 656.262(6)(d) (raising objections to a carrier's Notice of Acceptance) must precede her request for hearing before litigation of the unaccepted condition can proceed. In so doing, the Board disavowed its holding in Guillermo Rivera, 47 Van Natta 1723 (1995), which had found that a hearing request raising a "de facto" denial of a specific condition can also constitute a "communication in writing."
Following a carrier's acceptance of a left knee laceration, claimant requested a hearing on a "de facto" denial of a left knee contusion. Relying on amended ORS 656.262(6), the carrier sought dismissal of the hearing request because the request had not been preceded by claimant's objections to the carrier's acceptance notice by a "communication in writing."
The Board agreed with the carrier's argument. After examining the text of ORS 656.262(6)(d), the Board determined that, after claim acceptance, a worker must first communicate her objections to the acceptance notice to the carrier and allow the carrier 30 days to respond before she may allege a "de facto" denial of a condition at a hearing or other proceeding. The Board further concluded that the context of the statutory scheme supports a construction that claimant's objections to the acceptance notice must also precede a hearing request.
In reaching its conclusion, the Board referred to the definition of "claim" under ORS 656.005(6) (a written communication from a subject worker or someone on the worker's behalf), as well as ORS 656.283(1) (which provides that any party may at any time request a hearing on any matter concerning a claim). Taken together, the Board reasoned that a hearing request pursuant to ORS 656.283(1) cannot also constitute a "claim" under ORS 656.005(6) since the request for hearing must concern a claim. The Board also noted several portions of the legislative history, which supported the proposition that the written communication described in ORS 656.262(6)(d) must precede the hearing request.
Finally, the Board recognized that, in Guillermo Rivera, supra, it had found that a claimant's hearing request alleging a "de facto" denial also constituted a "communication in writing" to the carrier of the claimant's objections to the notice of acceptance. Nevertheless, the Board reconsidered that holding, reasoning that Rivera was made without benefit of the statutory construction analysis required in PGE v. Bureau of Labor and Industries, 317 Or 606 (1993), and in the absence of a consideration of the legislative history. Consequently, based on a reexamination of the statute and legislative history, the Board disavowed Rivera and held that the Hearings Division lacked jurisdiction to consider claimant's objections to the carrier's acceptance notice when claimant had not first communicated those objections to the carrier before filing a request for hearing.
Chair Hall dissented. Noting that the statute does not prescribe a particular form of written communication, Hall contended that a hearing request is sufficient to satisfy the statute. Likewise, although the legislative history refers to a "pre-hearing" letter, Hall reasoned that such a reference does not limit the form of written communication to only letters.
Stating that the statute only precludes alleging a "de facto" denial at any hearing or other proceeding unless 30 days has expired since the "written communication," Chair Hall argued that there is no requirement that claimant's objections to the acceptance notice must precede the filing of the hearing request. Likewise, noting that neither the statute nor the legislative history referred to an objection to a notice of acceptance as a "claim," Hall disagreed with the majority's decision to equate a "written communication" under ORS 656.262(6)(d) as a "claim."
Finally, although the statute's 30-day period for a response from the carrier had not expired by the time of hearing, Hall asserted that the statute is not jurisdictional and that dismissal of the hearing request would not be appropriate. Instead, Hall reasoned that the hearing could have been continued until the 30-day period had expired.
EVIDENCE:
IMPEACHMENT - DISCLOSURE -
"IN CAMERA" REVIEW
In Kenneth D. Legore, 48 Van Natta 1577 (July 22, 1996), the Board held that, in resolving a dispute concerning the discoverability of surveillance videotapes being withheld by a carrier as "impeachment evidence," the tapes should be viewed in camera to determine whether they were relevant only for purposes of impeachment. Following a hearing concerning a carrier's partial denial of claimant's rotator cuff disruption and headache condition, claimant sought disclosure of surveillance videotapes which the carrier alleged had been recorded at the time of claim closure for the accepted portions of the claim (head contusion, back and shoulder strains, hip bruise, and TMJ dysfunction). Finding that the tapes were "impeachment evidence" other than medical or vocational reports, the ALJ concluded that they were not discoverable under amended ORS 656.283(7).
The Board determined that, before ruling on the "impeachment evidence" issue, the withheld tapes should have been viewed in camera by the ALJ. Referring to its express policy of promoting the "full and complete disclosure of all facts and opinion pertaining to the claim being litigated," the Board noted that the only recognized exception to the "full disclosure" policy is the withholding of "impeachment evidence." Citing SAIF v. Cruz, 120 Or App 65 (1993), the Board concluded that when a dispute arises regarding withheld "impeachment evidence" under amended ORS 656.283(7), a fact finder should evaluate that withheld evidence to determine if it is relevant only for impeachment purposes.
In a special concurrence, Chair Hall noted that evidence that was otherwise discoverable did not become "impeachment evidence" simply because a party declared it to be so. Citing to the case law definition of "impeachment evidence," i.e., evidence that tends to destroy a witness' credibility in the estimation of the jury, Chair Hall further reasoned that the very fact that a party argued that certain evidence was being withheld, not for the purpose of impeaching the claimant at the present hearing, but in an attempt to impeach the claimant at a later date in a future proceeding, illustrated that the withheld evidence was not truly "impeachment" evidence and should therefore be disclosed.
LIER: RULE OF PROOF -
CLAIMANT MUST ELECT
In Manuel Garibay, 48 Van Natta 1476 (July 9, 1996), the Board held that, where claimant joined only one employer and did not elect the "last injurious exposure rule" (LIER) as a rule of proving compensability of his occupational disease claim for carpal tunnel syndrome (CTS), he was required to establish that his work activities for that particular employer were the major contributing cause of his condition, or its worsening. Although the medical evidence suggested that the major contributing cause of claimant's CTS was his twelve-year work history as a tree planter for several employers, his most recent employer (for whom he had worked the last two years) was the only employer joined as a party at the hearing. Inasmuch as the evidence did not establish that claimant's employment with his most recent employer either caused or worsened his CTS, the Board concluded that his occupational disease claim was not compensable.
In reaching its conclusion, the Board declined to apply the LIER. In doing so, the Board reasoned that, because claimant did not join other employers and litigated his case based solely on an occupational disease theory against the only employer present at hearing, he had not invoked the rule of proof prong of LIER. Distinguishing Silveira v. Larch Enterprises, 133 Or App 292 (1995), and Charlene A. Dieringer, 48 Van Natta 20 (1996), the Board noted that, in those cases, the claimants had either invoked, or expressly raised the rule. The Board determined that such an approach was consistent with case law showing that claimants elect between proving actual causation against a single employer, or by invoking the LIER, establishing that an entire period of work conditions was the major contributing cause of the condition.
Chair Hall dissented. Reasoning that the issue was not whether claimant "invoked" the rule, but whether he elected to prove actual causation, Hall contended that, because claimant's occupational disease claim was based on years of employment activities, he did not elect to prove actual causation. Hall further noted that the employer had not disclaimed responsibility nor notified claimant that he should file a claim against any other employers. Since LIER operated for the benefit of claimants, in order to relieve them of the task of proving which of multiple employers actually caused a work-related condition, Hall argued that LIER was applicable and that claimant should not be required to establish actual causation against his most recent employer. Finally, based on an application of LIER, Hall asserted that claimant's occupational disease claim was compensable and that the most recent employer was responsible for the claim.
MENTAL DISORDER ("802(3)"):
STRESS-RELATED PHYSICAL DISORDER
In Christine Falconer, 48 Van Natta 1545 (July 17, 1996), the Board, en banc, held that a claim for a mental stress-caused physical disorder satisfies the requirement in ORS 656.802(3)(c) of a diagnosis of a mental or emotional disorder that is generally recognized in the medical or psychological community if that physical disorder is a generally recognized diagnosis. Claimant was diagnosed with torticollis, a physical condition, and filed a mental disorder claim on the ground that her condition was caused by work stress.
The Board considered whether the definition in ORS 656.802(1)(b), which provides that a "'mental disorder' includes any physical disorder caused or worsened by stress," should be applied to ORS 656.802(3)(c), which requires a "diagnosis of a mental or emotional disorder that is generally recognized in the medical or psychological community." The Board found that, under the plain meaning of subsection (1)(b), the definition provided in the statute should have the same meaning in subsection (3)(c).
The Board further reasoned that the legislative history of ORS 656.802(1)(b) did not support another interpretation since the testimony showed only that the legislature intended to overrule previous court holdings that stress-caused physical disorders should be analyzed as accidental injuries rather than mental disorders. Thus, the Board concluded that claimant's torticollis satisfied ORS 656.802(3)(c) and, because she proved the remaining elements, her mental disorder claim was compensable.
Member Christian specially concurred, emphasizing that the order did not change the rule that "mental stress," by itself, was sufficient to prove a "mental disorder."
Member Haynes dissented, first disagreeing with the majority that the "plain meaning" of ORS 656.802(1)(b) indicated that its definition applied in subsection (3)(c). Finding the question ambiguous concerning the effect of subsection (1)(b) on ORS 656.802(3)(c), Haynes turned to legislative history. Although acknowledging the legislative intent of ORS 656.802(1)(b) to overrule certain court decisions, Member Haynes found that the absence of intent to overrule the line of Board cases holding that "stress" did not qualify as a "mental disorder" indicated that the provisions should continue to be interpreted as they originally were meant to apply. Specifically, Member Haynes would construe ORS 656.802(1)(b) as not including physical disorders resulting from stress as a "mental disorder" and would construe ORS 656.802(3)(c) as continuing to require a diagnosis of a mental disorder, whether or not the basis of the claim is for a physical disorder resulting from mental stress.
OCCUPATIONAL DISEASE:
PREEXISTING CONDITION -
NOT "WEIGHT / GENDER"
In Muriel D. Nelson, 48 Van Natta 1596 (July 26, 1996), the Board held that, in determining the compensability of claimant's occupational disease claim for bilateral carpal tunnel syndrome (CTS), alleged predisposing factors of "being female and slightly overweight" did not establish that she had a preexisting condition and, as such, she was not required to prove that there had been a pathological worsening of an underlying condition under ORS 656.802(2)(b). Noting opinions from carrier-arranged medical examiners that had identified claimant's "being female and slightly overweight" as a predisposition to the development of CTS, the carrier argued that claimant must establish that her work activities were the major contributing cause of a pathological worsening of her underlying condition.
The Board disagreed with the carrier's contention. Based on the persuasive opinion from claimant's attending physician, the Board found that claimant did not have any factors that contributed or predisposed her to disability or need for treatment for her CTS. Consequently, the Board concluded that claimant did not have a "preexisting condition" under ORS 656.005(24).
Alternatively, even if "being female" was considered as a predisposing factor, the Board concluded that it did not fit within the definition of a "preexisting condition" under ORS 656.005(24) because it was not an "injury, disease, congenital abnormality, personality disorder or similar condition." Likewise, noting that the medical examiners did not explain why being "slightly overweight" was a predisposing factor to claimant's CTS, the Board was not persuaded that her weight contributed or predisposed her to disability or need for treatment for CTS.
Finally, even if such factors were considered to be "preexisting conditions," the Board determined that ORS 656.802(2)(b) was not applicable. In reaching this conclusion, the Board reasoned that claimant's occupational disease claim for CTS was not based on a worsening of her alleged "predisposing factors" of "being female and slightly overweight," but rather whether her employment conditions were the major contributing cause of her CTS.
OWN MOTION:
"14-DAY" RETRO TIME LOSS LIMIT
NOT APPLICABLE TO "278" CLAIMS
In Pamela Vinyard, 48 Van Natta 1442 (July 2, 1996), the Board held that, when authorizing temporary disability for a claim reopened pursuant to its Own Motion authority under ORS 656.278, the 14-day limitation for retroactive time loss authorization pursuant to ORS 656.262(4)(f) is not applicable. In submitting claimant's request for claim reopening pursuant to ORS 656.278, a carrier contended that an attending physician's retroactive authorization for time loss was limited to 14 days under ORS 656.262(4)(f).
The Board disagreed. Noting that the "14-day" limitation pertained to temporary disability payable under ORS 656.268, the Board reasoned that ORS 656.262(4)(f) was not applicable because any temporary disability authorized pursuant to the Board's Own Motion authority flowed from ORS 656.278(1). Finding that claimant's 5-year aggravation rights had expired under his accepted injury claim, that he was in the work force at the time of his worsening, and that his compensable condition had worsened resulting in his hospitalization for surgery, the Board concluded that it was authorized to award temporary disability beginning with the date of hospitalization. The Board cited ORS 656.278(1) and OAR 438-012-0035.
OWN MOTION:
INEFFECTIVE "AP" TTD AUTHORIZATION -
"262(4)(f)" - N/A TO "TERMINATION" OF TTD
In Jeffrey T. Knudson, 48 Van Natta 1708 (August 23, 1996), the Board held that, once a claim was reopened under ORS 656.278(1) for the payment of temporary disability (TTD), a carrier could not terminate such benefits based on claimant's attending physician's retroactive authorization of TTD. A previous Own Motion Order had reopened the claim and authorized TTD beginning with the date claimant had been hospitalized for surgery. Although the carrier began making TTD payments, it stopped when it received an authorization from claimant's attending physician commencing with a time period which was more than 14 days before the date of the authorization notice. Relying on ORS 656.262(4)(f), the carrier argued that it properly terminated claimant's TTD because the attending physician's retroactive authorization could not exceed 14 days.
The Board disagreed with the carrier's contention. Noting that ORS 656.262(4)(f) applies to TTD payable "under ORS 656.268," the Board reasoned that the statute was not applicable to TTD authorized under ORS 656.278 in "own motion" claims. Citing Pamela Vinyard, 48 Van Natta 1442 (July 2, 1996), the Board reiterated that its authority to award TTD under ORS 656.278 was not conditioned on an attending physician's time loss authorization, but rather on whether claimant's compensable condition had worsened requiring surgery or inpatient hospitalization.
In light of such circumstances, the Board concluded that the lack of an "attending physician authorization" was not a basis for terminating TTD under ORS 656.278(1). In reaching its conclusion that ORS 656.262(4)(f) was not applicable in the processing of claims reopened under ORS 656.278, the Board acknowledged that OAR 438-012-0035 provides that TTD must continue until "termination" of such benefits is authorized by ORS 656.268. Nevertheless, unlike sections (3)(a-c) (which allow for termination of TTD pursuant to precise "pre-closure" situations), the Board noted that ORS 656.268(3)(d) provides a general statement regarding any other event that causes the lawful suspension, withholding, or termination of TTD under ORS 656.262(4)(d).
Since the prior order reopening the claim had authorized the payment of TTD, the Board interpreted the carrier's action as a "withholding" of benefits. Inasmuch as OAR 438-012-0035(4)(c) authorizes only the "termination" of benefits, the Board held that the lack of effective "time loss" authorization by an attending physician pursuant to ORS 656.262(4)(f) was not an applicable basis for the termination of TTD under an "own motion" claim.
OWN MOTION:
NO "ADVISORY OPINIONS"
In Richard Uhing, 48 Van Natta 1681 (August 14, 1996), the Board held that it was not authorized under ORS 656.278 to render "advisory opinions" regarding a carrier's claim processing obligations. Following the issuance of a prior Board Own Motion order that had set aside a Notice of Closure, the carrier requested that the Board indicate a timeframe for the allowance of continuing temporary disability (TTD) benefits while claimant decided whether to proceed with a proposed surgery. The carrier further noted that it was "not taking a position on this matter."
The Board dismissed the carrier's request. Finding that the carrier had neither closed the claim nor petitioned for suspension of claimant's TTD, the Board reasoned that the carrier was essentially seeking an advisory opinion regarding claimant's continuing entitlement to benefits. Concluding that it was not authorized to issue advisory opinions, the Board determined that there was no current justifiable controversy for its resolution.
REMAND:
FAILURE TO DISCLOSE TREATING PHYSICIAN
In William J. Delorey, 48 Van Natta 1673 (August 14, 1996), the Board held that remand was warranted when claimant did not notify the carrier of the name of a physician who had been treating him at the time of the hearing and the closure of the record. At the prior hearing, claimant had not mentioned the physician's name when asked how many physicians he had seen. In addition, no information regarding the physician had been disclosed in response to the carrier's ongoing discovery request under former 438-07-015(3) and (4). When the identity of physician came to the carrier's attention during its appeal of the ALJ's compensability decision, the carrier moved for remand for the taking of additional evidence under ORS 656.295(5).
The Board granted the motion. Although it was unclear whether claimant had any reports from the physician in his possession at the time of hearing, the Board found that claimant had failed to disclose the physician's involvement in his treatment when responding to the carrier's questions at the prior hearing. Reasoning that the carrier had exercised due diligence by requesting all medical reports / documents and by questioning claimant at hearing about his physicians, the Board concluded that remand was appropriate. The Board cited Penny S. Orcutt, 47 Van Natta 1057, on recon 47 Van Natta 1330 (1995), and Penni L. Mumm, 42 Van Natta 1615 (1990).
Chair Hall specially concurred. Hall asserted that the record did not establish that claimant had failed to disclose any documents in response to the carrier's ongoing discovery request. Nonetheless, Chair Hall agreed that remand was warranted because claimant should have more fully answered the carrier's questions at hearing concerning his physicians.
TPD: ORS 656.325(5)(b) -
VIOLATION OF WORK POLICY - MODIFIED JOB
In Glenn E. Hall, 48 Van Natta 1452 (July 3, 1996), the Board held that a carrier had properly ceased claimant's temporary total disability (TTD) under ORS 656.325(5)(b) when claimant's attending physician released him to modified work which would have been available had he not been terminated from his employment for violating his employer's safety policy. In reaching its conclusion, the Board rejected claimant's constitutional challenges to the statute.
First, the Board disagreed that the statute represented an improper delegation of a legislative decision making function. Reasoning that the statute applied only when there had been a termination of employment and did not delegate to an employer any power to determine what the law should be, the Board concluded that an employer's decision to terminate a worker for violating a work rule was not an exercise of legislative power. The Board cited Foeller v. Housing Authority of Portland, 198 Or 205, 264 (1953).
In addition, the Board determined that a carrier's reduction of TTD to TPD under the statute did not constitute a governmental deprivation of benefits in violation of the federal Due Process Clause and Carr v. SAIF, 65 Or App 110 (1983). Unlike the situation in Carr (which involved the Department's suspension of TTD without a hearing), the Board reasoned that the decision to terminate claimant for committing an unsafe act in violation of his employer's safety policy and the ensuing cessation of TTD were made by a private entity (his employer).
TPD (ORS 656.325(5)(c)):
ILLEGAL ALIEN - MODIFIED JOB
In Roberto Rocha-Barrancas, 48 Van Natta 1462 (July 3, 1996), applying ORS 656.325(5)(c), the Board held that a carrier was authorized to convert temporary disability benefits payable to claimant (an illegal alien) from temporary total disability (TTD) to temporary partial disability (TPD) after his attending physician approved a modified job even after his employer initially failed to pay him wages on his return to work in the modified job. Following claimant's compensable ankle injury, his employer learned that claimant's "green card" had expired and that he was working in this country illegally. On receipt of a modified work release from claimant's attending physician, the employer provided claimant with a light duty job. When claimant neither received wages nor temporary disability benefits, he stopped working and requested a hearing.
Relying on ORS 656.325(5)(c), the Board concluded that the carrier was required to pay TPD after claimant's attending physician approved modified employment. The Board further determined that such an obligation remained after claimant left his modified work. Although claimant's decision to stop working when he was not receiving wages was understandable, the Board reasoned that the statute is not dependent on the availability of a modified job. Consequently, since claimant remained capable of performing modified employment and there was no indication that his attending physician had re-authorized total disability, the Board found that the carrier was not required to reinstate TTD when claimant left his modified job.
Chair Hall specially concurred. Although agreeing with the majority's reasoning concerning the conversion from TTD to TPD under the statute, Hall wrote separately to emphasize that claimant had acknowledged his status as an illegal immigrant. Under such circumstances, Chair Hall noted that it was unnecessary to address such potential issues as which party has the burden of proving a claimant's illegal status and what is the precise meaning of "present in the United States in violation of federal immigration laws," as well as the actual calculation of claimant's TPD or the interpretation / application of OAR 436-060-0030(7).
CONSEQUENTIAL CONDITION:
"IME" INJURY -
ORIGINAL INJURY MUST BE MAJOR CAUSE
Robinson v. Nabisco, Inc., 143 Or App 59 (August 28, 1996). The court affirmed the Board's order in Kathleen A. Robinson, 46 Van Natta 1677 (1994), previously noted 13 NCN 4:6, which had found that claimant's herniated disc injury (which was incurred during an insurer-arranged medical examination (IME) for a compensable low back injury) was not compensable under ORS 656.005(7)(a)(A) as a consequential condition. Reasoning that the major contributing cause of claimant's herniated disc was the injury she sustained during the IME, the Board concluded that her herniated disc was not a compensable consequential condition.
Asserting that there was no meaningful distinction between an injury incurred during treatment and one suffered during an IME, claimant argued that her herniated disc condition was compensable. Claimant relied on Barrett Business Services v. Hames, 130 Or App 190, 196-97, rev den 320 Or 492 (1994), which held that where a claimant suffers an injury as the direct and natural result of reasonable and necessary treatment of a compensable injury, the compensable injury is deemed the major contributing cause of the new condition for purposes of ORS 656.005(7)(a)(A).
The court rejected claimant's proposal to extend the Hames holding to injuries incurred during an IME relating to a compensable injury. The court acknowledged that an "IME" injury is similar in some respects to a "medical treatment" injury. Nevertheless, the court reasoned that an "IME" injury does not flow "directly and inexorably" from the compensable injury as does a "medical treatment" injury. Consequently, in light of its decisions in Kephart v. Green River Lumber, 118 Or App 76, 79, rev den 317 Or 272 (1993), and Hicks v. Spectra Physics, 117 Or App 293, 296 (1992), as well as the apparent legislative intent to limit what is included as part of the "natural consequences" of an injury, the court concluded that in order for an "IME" injury to be compensable as a consequence of a compensable injury, the original injury must be the major contributing cause of the consequential condition.
COURSE & SCOPE:
"SKIPPING" AT WORK
Wilson v. State Farm Insurance, 142 Or App 205 (July 10, 1996). The court affirmed without opinion the Board's order in Donna M. Wilson, 47 Van Natta 2160 (1995), previously noted in 14 NCN 6:11, which held that claimant's injury, which occurred while she was "skipping" to her desk to prepare to leave work early, did not arise within the course and scope of her employment.
EXTENT:
"SUPPLEMENTAL" ARBITER REPORT -
INADMISSIBLE UNDER "268(7)(g)"
Tinh Xuan Pham Auto v. Bourgo, 143 Or App 73 (August 28, 1996). The court affirmed the Board's order in Daniel L. Bourgo, 46 Van Natta 2505 (1994), previously noted 13 NCN 6:5, which had held that a medical arbiter's "post-reconsideration order" "supplemental" report was inadmissible under ORS 656.268(7)(g). Relying on the reference to "any medical arbiter report" in former ORS 656.268(6)(a) (now (6)(e)), the carrier contended that the statute contemplated the existence of more than one arbiter's report and that a later supplementation or clarification would be admissible.
Concluding that the terms of the two statutes were ambiguous, the court turned to the legislative history. After completing its examination of that history, the court noted that the purpose of the addition of the term "any medical arbiter report" to ORS 656.268(6)(e) was to ensure that a medical arbiter's report that was not prepared in time to be used in the reconsideration process could be considered in later proceedings reviewing the reconsideration order. The court also agreed with the Board's reasoning that permitting a party to solicit supplemental opinions from the medical arbiter would tend to further the "dueling doctors" and litigious system that the legislature was attempting to avoid. In light of such circumstances, the court affirmed the Board's conclusion that neither statutory provision allowed the admission of a "supplemental" or "clarifying" medical arbiter's report which was prepared at the request of either party.
EXCLUSIVE REMEDY ("018"):
COURSE & SCOPE OF EMPLOYMENT
Krushwitz v. McDonald's Restaurants of Oregon, Inc., 323 Or 520 (July 11, 1996). The Supreme Court held that the exclusivity provisions of the Workers' Compensation Law do not preclude a plaintiff's wrongful death action where the fatal injury occurred outside the course of employment. Decedent was a high school student and part-time worker for the employer. One day, he worked his normal after-school shift and then volunteered to work an additional shift beginning at midnight. Upon completing the second shift, he told his supervisor that he was too tired to work his upcoming afternoon shift and asked that another employee replace him. Decedent then left the restaurant to drive home. His automobile crossed the center line after he fell asleep at the wheel, and he was killed in a head-on collision with another automobile. Plaintiff filed a wrongful death action against the employer, alleging that the employer negligently caused the death. On the employer's motion, the trial court dismissed the complaint on the grounds that the Workers' Compensation Law provided an exclusive remedy for the death. The Court of Appeals affirmed.
The Supreme Court reversed. In determining whether an injury is compensable under the Workers' Compensation Law, the Court stated that the "arising out of employment" and "in the course of employment" prongs are viewed as two parts of a single "work-connection" analysis. Applying such an analysis, the Court found that plaintiff met the "arising out of" prong because of the allegation that the employer caused decedent's death by permitting him to work long hours on a school day. Turning to the "in the course of" prong, the Court held that the "special errand" exception to the going and coming rule was not applicable, because decedent was not acting in the employer's behalf, nor was he under the employer's control, at the time of the accident. The Court held that the "greater hazard" exception to the going and coming rule also did not apply, because decedent's accident did not occur upon a route that was the sole means of ingress to or egress from the employer's restaurant, and no specific hazard existed upon his route.
Finding that decedent's death occurred while coming home from work, and finding no applicable exception to the going and coming rule, the Court concluded that his death did not occur in the course of employment and, therefore, was not a compensable injury. In so concluding, the Court stated that both prongs of the "work-connection" test must be satisfied to some degree in order to establish a compensable injury. Based on the text of ORS 656.018, in the versions prior to and after the 1995 statutory amendments, the Court held that the Workers' Compensation Law provides an exclusive remedy only for injuries arising out of and in the course of employment. Having found that decedent's death did not occur in the course of employment, the Court concluded the exclusivity provisions do not bar the wrongful death action.
ATTORNEY FEE:
PENALTY ("268(4)(g)") -
NO BASIS FOR "382(1)" / "386(2)" FEE
Nero v. City of Tualatin, 142 Or App 383 (July 31, 1996). The court affirmed the Board's order in Jay Nero, 46 Van Natta 2155, on recon 46 Van Natta 2252 (1994), on recon 47 Van Natta 163 (1995), that declined to award an attorney fee under ORS 656.382(1) or ORS 656.386(2) when it assessed a penalty pursuant to ORS 656.268(4)(g). Noting that the "268(4)(g)" penalty is based on a 25 percent increase in claimant's permanent disability on reconsideration with a total award of at least 20 percent, the court reasoned that the statute does not require unreasonable conduct or wrongdoing by the carrier before imposition of the penalty. Citing SAIF v. Valencia, 140 Or App 14, 16 (1996), and SAIF v. St. Clair, 134 Or App 316, 320 (1995), the court rejected claimant's contention that imposition of the penalty established as a matter of law, that the carrier had unreasonably resisted the payment of compensation under ORS 656.382(1).
The court turned to the question of whether, as a factual matter, the carrier's Notice of Closure (which had awarded no permanent disability) constituted an unreasonable resistance to the compensation subsequently granted by the Director following a medical arbiter examination and reconsideration. Based on an attending physician's closing examination which had found no permanent impairment or disability, the Board had determined that the carrier's conduct was not unreasonable. Reasoning that the Board had properly focused on the evidence available to the carrier at the time of its decision and concluding that substantial evidence supported the Board's findings, the court held that the Board had correctly found that claimant was not entitled to an attorney fee under ORS 656.382(1).
The court also rejected claimant's request for an attorney fee payable from the penalty assessment. Citing Dotson v. Bohemia, Inc., 80 Or App 233, rev den 302 Or 35 (1986), the court concluded that a "268(4)(g)" penalty does not satisfy the general definition of "compensation" in ORS 656.005(8) because the penalty is not among the benefits addressed in Dotson (those benefits "set forth in [former] ORS 656.202 to ORS 656.258"). Inasmuch as the penalty imposition under ORS 656.268(4)(g) arose from a separate section of ORS Chapter 656 and because the penalty was "provided" to penalize the carrier, the court determined that the penalty did not constitute compensation and, as such, no attorney fee under ORS 656.386(2) was allowable.
CLAIM PROCESSING:
ENFORCEMENT OF UNAPPEALED ORDER -
SB 369 NO EFFECT - ORDER ALREADY FINAL
Jeld-Wen, Inc. v. Bartz, 142 Or App 433 (July 31, 1996). The court affirmed the Board's order in Darlene L. Bartz, 47 Van Natta 984 (1995), which had directed a carrier to pay temporary disability benefits pursuant to a prior, unappealed order. Relying on the 1995 statutory amendments, the carrier argued that the basis for the Board's prior unappealed award had been eliminated.
The court rejected the carrier's contention. Citing King v. Building Supply Discount, 133 Or App 179, 182-83 (1995), the court reiterated that collateral attacks on final orders were not permissible. Consequently, the court concluded that the carrier's argument that the Board's prior, final order was invalid was presented too late.
In reaching its conclusion, the court also rejected the carrier's assertion that the 1995 statutory amendments were retroactively applicable. Relying on Section 66(5)(a) of the 1995 Act, the court determined that the prior, unappealed order (issued in May 1994) had become final before the June 7, 1995 effective date of the statutory amendments.
COURSE & SCOPE:
"CO-WORKER" ASSAULT -
DISPUTE MUST BE WORK-RELATED
Redman Industries, Inc. v. Lang, 142 Or App 404 (July 31, 1996). The court reversed a Board order which had held that claimant's injury, which had occurred when he was struck by a co-worker who was angered by claimant's derogatory racial remarks, arose out of his employment. Over a two-day period, claimant and a co-worker at a manufactured home factory exchanged racial remarks. Although initially taken in jest, the exchange eventually angered the co-worker, which prompted his attack on another co-worker and claimant.
The court confined its analysis to whether claimant's injury "arose out of" his employment as a window installer for the factory. Citing Norpac Foods, Inc. v. Gilmore, 318 Or 363, 368 (1994), and Phil A. Livesley Co. v. Russ, 296 Or 25, 29 (1983), the court identified the issue as whether there was a causal connection between claimant's injury and a risk connected with his employment. After conducting its review, the court held that the risk of being assaulted by a co-worker for using racially derogatory remarks was not sufficiently connected with his employment.
In reaching its conclusion, the court reasoned that there was nothing about the nature of claimant's window installer job that "created or enhanced" the risk of assault by a co-worker. Furthermore, the court concluded that the dispute which prompted claimant's injury was not work-related, but rather pertained to claimant's personal relationship with his co-worker. Among other decisions, the court discussed Barkley v. Corrections Div., 111 Or App 48, 52-53 (1992), Carr v. U.S. West Direct Co., 98 Or App 30, rev den 308 Or 608 (1989), and Youngren v. Weyerhaeuser, 41 Or App 333 (1979).
COURSE & SCOPE:
HORSEPLAY -
NONPARTICIPATING VICTIM
Liberty Northwest Insurance Corp. v. Johnson, 142 Or App 21 (July 3, 1996). The court affirmed the Board's order in Richard A. Johnson, 47 Van Natta 1531 (1995), which found that claimant's knee injury (which occurred when he was "playfully" tackled by a co-worker) arose out of and in the course of his employment. While returning to his work station near the end of his unpaid lunch break, claimant kidded a co-worker about "brown-nosing." In the spirit of fun, the co-worker grabbed claimant and twisted him to the ground. As a result, claimant injured his knee. The carrier denied claimant's injury claim, contending that the injury resulted from horseplay and, as such, there was an insufficient work connection between his injury and his employment.
Relying on Andrews v. Tektronix, Inc., 323 Or 154, 161 (1996), the court identified the issue as whether claimant's "arose out of" and "in the course of" his employment; i.e., "whether the relationship between the injury and the employment is sufficient that the injury should be compensable." Citing Olsen v. SAIF, 29 Or App 235, rev den 280 Or 1 (1977), the court concluded that generally an injury to an employee on the employer's premise during a lunch break occurs in the course of the employment. In light of such circumstances, the court held that the Board properly concluded that claimant's injury was "in the course of" his employment.
Turning to the issue of whether claimant's injury arose out of his employment, the court stated that the key issue was whether claimant was a non-participating victim or an active participant in the horseplay incident that caused his injury. See Kammerer v. United Parcel Service, 136 Or App 200 (1995); Kessen v. Boise Cascade Corp., 71 Or App 545 (1984). Noting that the Board had found that claimant's "brown-nose" comment had been made in jest and not intended to incite the resulting playful physical attack and that he had not actively participated in the ensuring wrestling incident, the court concluded that there was substantial evidence to support the Board's determination that claimant was a victim of his co-worker's horseplay. Accordingly, the court held that there was a sufficient causal connection between claimant's injury and his employment.
COURSE & SCOPE:
"MELLIS" FACTORS -
"NORPAC" UNITARY WORK-CONNECTION
Freightliner Corporation v. Arnold, 142 Or App 98 (July 3, 1996). The court affirmed the Board's order in Darron A. Arnold, 46 Van Natta 2467 (1994), which set aside a carrier's occupational disease denial of claimant's respiratory condition. In doing so, the Board found that claimant's condition was caused in major part by his employment exposure to vapors from his sanding and priming work, which had occurred on his employer's premises, were paid for by the employer and occurred with the employer's acquiescence concerning employees' personal projects.
Noting that the Board had utilized the seven factors listed in Mellis v. McEwen, Hanna, Gisvold, 74 Or App 571, 574, rev den 300 Or 249 (1985), the carrier argued that the unitary work-connection test articulated by the Supreme Court in Norpac Foods, Inc. v. Gilmore, 318 Or 363, 366 (1994) should have been applied. The court found no reversible error.
Citing First Interstate Bank v. Clark, 133 Or App 712, rev den 321 Or 429 (1995), the court stated that, although Mellis no longer correctly frames the analysis for evaluating the issue of work connection, it is not necessarily error for the Board to have relied on the seven Mellis factors in reaching its decision. Rather, the court identified the determinative question as whether the Board's work-connection analysis (whether by reference to seven factors or otherwise) adequately addresses both the "arising out of" and the "in the course of" components of the unitary work-connection test of Norpac.
Determining that the Board clearly considered the totality of the circumstances, cited Norpac, and expressly evaluated all relevant factors, the court held that the Board had adequately addressed both components of the unitary analysis required in Norpac. Furthermore, the court concluded that there was substantial evidence to support the Board's findings.
Finally, the court rejected the carrier's assertion that the Board was precluded from relying on a physician's opinion because the physician had testified that claimant's need for treatment was caused in "material" part by his work activities. Citing McClendon v. Nabisco Brands, Inc., 77 Or App 412, 417 (1986), the court repeated that "magic words" are not required where the physician's testimony as a whole reasonably may be read as concluding that the "major" cause of claimant's need for treatment was his occupational exposure.
"GOOD CAUSE" ("319(1)(b)"):
UNTIMELY HEARING REQUEST -
FAULT OF ATTORNEY'S SECRETARY -
NOT RESPONSIBLE FOR FILING REQUEST
Ogden Aviation v. Lay, 142 Or App 469 (July 31, 1996). The court affirmed a Board order which found that claimant had "good cause" under ORS 656.319(1)(b) for her untimely hearing request from a carrier's denial because the delay was attributable to the fault of claimant's attorney's secretary in placing the carrier's denial on the attorney's desk. The carrier contended that the Board had erred in holding that "good cause" could be established by showing that claimant's hearing request was not timely filed because of the omission or negligence of someone other than the person specifically responsible for "filing" the hearing request. Citing Brown v. EBI Companies, 289 Or 455, 460 (1980), the carrier argued that the correct standard does not depend on responsibility for filing but, rather responsibility for "recognizing and correctly handling" the denial.
The court disagreed with the employer's contention. First, clarifying its decision in SAIF v. Curtis, 107 Or App 625 (1991), the court stated that it reviewed the Board's "good cause" determinations under ORS 656.319(1) pursuant to ORS 183.482(8)(b); i.e., whether the Board's determination of "good cause" was within "the range of discretion delegated to" the Board by ORS 656.319(1). Second, the court disagreed with the employer's interpretation of the Brown holding. After examining the circumstances surrounding the Brown decision, the court reasoned that Brown held that the Board was not foreclosed, as a matter of law, from determining that mistake or neglect by a person not responsible for recognizing and handling a denial constituted "good cause." Conversely, the court determined that, neither Brown nor any other subsequent case, has held that, as a matter of law hedging the Board's discretion, neglect by a staff member who is charged with recognizing or handling claim denials can never be "good cause." Consequently, the court concluded that, even if claimant's attorney's secretary had such a responsibility, such a fact would not, as a matter of law, preclude the Board's "good cause" determination.
Finally, the court considered the Board's "good cause" determination in accord with Mendoza v. SAIF, 123 Or App 349 (1993), rev den 318 Or 326 (1994), where the Mendoza court had found no error in the Board's finding that a legal assistant's failure to follow her instructions to file a hearing request from a denial did not constitute "good cause." Noting that there was no evidence that claimant's attorney's secretary in the case at hand had any responsibility for filing hearing requests, the Board's "good cause" finding was not inconsistent with its prior position or practice as expressed in Mendoza.
MEDICAL TREATMENT:
EFFECT OF PRIOR AGREEMENT
Taylor v. Cabax Saw Mill, 142 Or App 121 (July 3, 1996). The court affirmed a Board order which found that a previously approved Disputed Claim Settlement (DCS) did not guarantee claimant two monthly medical treatments regardless of whether those treatments were otherwise compensable. Following the DCS, the carrier denied claimant's medical treatment from a physician who was not a member of a Managed Care Organization (MCO). Claimant contested the denial, contending that the DCS entitled him to two monthly treatments with no limitation on his choice of physician.
The court held that the Board properly upheld the denial. Noting that the DCS addressed only the issue of the reasonableness of the carrier's denial of medical treatments in excess of two per month, the court concluded that the Board correctly determined that the DCS did not create claimant's entitlement to medical treatment from the physician of his choice. Rather, the court reasoned that the medical treatment must otherwise be compensable. Relying on ORS 656.245(4), the court determined that claimant's treatment must be provided within the MCO contract. Inasmuch as claimant's physician was not a MCO member, the court held that the Board had not erred in upholding the carrier's denial.
MENTAL DISORDER ("802(3)"):
COGNIZABLE / NONCOGNIZABLE FACTORS
Bank of Newport v. Wages, 142 Or App 145 (July 3, 1996). The court affirmed the Board's order in Lori Ann Wages, 47 Van Natta 1335 (1995), that set aside a carrier's denial of claimant's mental disorder claim. The Board had found that claimant's adjustment disorder was related to ridicule and harassment she had experienced from her supervisor based on her obesity which were conditions not generally inherent in every working situation. See ORS 656.802(3)(b). Although acknowledging that the medical evidence did not factor out excluded (stressors that did not exist "in a real and objective sense") from non-excluded employment conditions under ORS 656.802(3), the Board had reasoned that a physician's emphasis on a particular work incident (as opposed to excluded stressors) established that real and objective stress from the "obesity" ridicule played the major causative role in her adjustment disorder.
Contending that claimant's medical evidence did not sufficiently distinguish between conditions that were cognizable under ORS 656.802(3) from those that were not, the carrier argued that the "Board read into medical reports opinions which were simply not there." The court identified the inquiry as whether the Board could reasonably read the physician's opinion as concluding, albeit implicitly, that cognizable stressors were the "major contributing cause" of her adjustment disorder. Reasoning that the Board could reasonably read the physician's opinion as concluding that the cognizable, obesity-related workplace conditions were the preponderant cause of her mental disorder, the court held that the Board had not erred in finding the claim compensable. The court cited McClendon v. Nabisco Brands, 77 Or App 412, 417 (1986).
MENTAL DISORDER ("802(3)(b)"):
"CONDITIONS GENERALLY INHERENT"
Whitlock v. Klamath County School District, 142 Or App 137 (July 3, 1996). The court affirmed the Board's order in Glenn E. Whitlock, 47 Van Natta 179 (1995), which upheld a carrier's denial of claimant's occupational disease claim for a mental disorder. The Board had found that claimant's stress from additional teaching duties attributable to budgetary cutbacks were conditions generally inherent in every working situation. See ORS 656.802(3)(b). Asserting that the Board had improperly focused on factors that did not directly cause his mental disorder (budget cuts and his exercise of "bumping rights"), claimant contended that the Board had not meaningfully addressed the actual employment conditions that produced his disorder ("lack of preparation time").
The court agreed that consideration of conditions that antedated claimant's assumption of his reassignment was immaterial. Moreover, from the tone and tenor of the Board's opinion, the court reasoned that it was apparent that the Board was preoccupied with the prevalence of layoffs and bumping rights. Finally, the court determined that the Board's discussion of claimant's preparation demands was so cursory as to preclude meaningful judicial review. Concluding that the Board had failed to articulate the rational connection between the facts and its legal conclusion that the preparation time for claimant's reassigned position was of a sort "generally inherent in every working situation," the court remanded for reconsideration.
Kellow v. Tillamook County Creamery, 143 Or App 311 (August 28, 1996). The court, per curiam, remanded a Board order which had upheld a carrier's "resultant condition" denial under former ORS 656.005(7)(a)(B) for carpal tunnel syndrome. Reasoning that the 1995 legislative amendments to the statute might be applicable, the court remanded for reconsideration. The court cited Conner v. Connecticutt Indemnity Co., 139 Or 421 (1996), and Volk v. America West Airlines, 135 Or App 565, rev den 322 Or 645 (1996).
Miner v. Oregon Metallurgical Corporation, 142 Or App 153 (July 3, 1996). The court, per curiam, reversed the Board's order in Ricky Miner, 47 Van Natta 1649 (1995), which classified claimant's injury claim as nondisabling. Citing Volk v. America West Airlines, 135 Or App 565 (1995), rev den 322 Or 645 (1996), the court remanded for reconsideration.
SAIF v. Harold, 142 Or App 204 (July 10, 1996). The court, per curiam, reversed a Board order that had set aside a carrier's denial of claimant's "consequential" conditions under former ORS 656.005(7)(a)(A). Citing Volk v. America West Airlines, 135 Or App 565 (1995), rev den 322 Or 645 (1996), the court remanded for reconsideration.
SANCTIONS ("390(1)"):
FRIVOLOUS APPEAL
Winters v. Woodburn Carcraft Company, 142 Or App 182 (July 10, 1996). The court imposed sanctions under ORS 656.390(1) against a claimant's attorney for a frivolous appeal of a Board's order which had upheld a carrier's denial of claimant's left knee injury claim. Citing ORS 656.390(2), the court stated "frivolous" means the matter is not supported by substantial evidence or the matter is initiated without reasonable prospect of prevailing.
Turning to the case at hand, the court determined that claimant had contended, "purely and simply that the Board did not weigh the competing testimony of the two physicians to his liking." Noting that claimant had relied on cases that were decided under the long-superceded de novo standard of review, the court reasoned that claimant's petition had not disputed that the Board's order was supported by "substantial evidence" (which the court stated consists of evidence that, when the record, viewed as a whole, would permit a reasonable person to make a finding). See Armstrong v. Asten-Hill Co., 90 Or App 200, 206 (1988). Concluding that it lacked authority to second guess the Board's assessment of conflicting expert testimony, the court held that claimant's petition was filed "without reasonable prospect of prevailing."
Finally, the court found that claimant's second assignment of error was similarly deficient. Determining that claimant's argument that the Board had erred in failing to award a penalty for an untimely denial had not been raised before the Board and that claimant had asserted no basis for considering it for the first time on review, the court concluded that the argument likewise had no reasonable prospect of success.
STANDARDS ("35-007(3)(b)"):
CONSIDERING PRIOR AWARD -
ORS 656.222 INCLUDES UNSCHEDULED AWARDS
Offill v. Greenberry Tank and Iron Company, 142 Or App 351 (July 31, 1996). The court affirmed the Board's order in Bill R. Offill, 47 Van Natta 833 (1995), that, in evaluating claimant's unscheduled permanent disability, reduced his award pursuant to OAR 436-35-007(3)(b) in light of a prior permanent disability award. Concluding that earlier work restrictions from claimant's prior low back injury had not been removed by the time of his second low back injury, the Board had declined to consider the restrictions in evaluating claimant's permanent disability due to the second injury. The Board had also rejected claimant's contention that OAR 436-35-007(3)(b) was inconsistent with ORS 656.222 as interpreted in City of Portland v. Duckett, 104 Or App 318 (1990), rev den 311 Or 187 (1991) because the rule authorizes offsets in unscheduled permanent disability awards.
The court agreed with the Board's rejection of claimant's argument. After examining Nesselrodt v. Compensation Department, 248 Or 452 (1967), Green v. State Ind. Acc. Comm., 197 Or 160 (1953), and Cain v. State Ind. Acc. Comm., 149 Or 29 (1934), the court concluded that, contrary to any suggestion otherwise in American Bldg. Maint. v. McLees, 296 Or 772 (1984), the Cain, Green, and Nesselrodt courts had not held that ORS 656.222 was inapplicable in unscheduled permanent disability cases. Citing Norby v. SAIF, 303 Or 536 (1987), the court reasoned that the Supreme Court had implicitly assumed that ORS 656.222 applied in the context of unscheduled permanent disability injuries. Finally, the court referred to its own opinion in Thomason v. SAIF, 73 Or App 319 (1984), rev den 299 Or 443 (1985), which had held that ORS 656.222 was applicable in unscheduled permanent disability cases.
In light of such circumstances, the court determined that its dictum to the contrary in City of Portland v. Duckett, 104 Or App 318 (1990), rev den 311Or 187 (1991), had been wrong. Inasmuch as substantial evidence supported the Board's finding that the disability caused by claimant's first injury had not resolved at the time of his second injury, the court held that the Board had not erred in applying OAR 436-35-007(3).
STANDARDS:
ADAPTABILITY - RETURN TO WORK
"ZERO" VALUE INVALID
Pelcin v. Riedel International, 142 Or App 594 (August 21, 1996). The court, per curiam, reversed the Board's order in Michael E. Pelcin, 47 Van Natta 1380 (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 remanded for reconsideration.
STANDARDS:
REMAND - TEMPORARY RULE
IMPAIRMENT - "OBJECTIVE FINDINGS"
Simon v. PIE Nationwide, Inc., 142 Or App 411 (July 31, 1996). The court reversed the Board's order in Arthur D. Simon, 45 Van Natta 512 (1993), which had declined to award permanent disability for a hernia injury. Citing Tektronix, Inc. v. Watson, 132 Or App 483, 485-86 (1995), the court concluded that the Board had correctly reasoned that only the impairment findings from an attending physician or a medical arbiter may be considered. Thus, although the Board had adopted an Administrative Law Judge's findings that claimant had sustained a permanent impairment, the court reasoned that the Board had implicitly rejected such findings because an independent medical examiner was the only physician to have rendered such an impairment finding. The court also held that the Board had correctly found that a medical arbiter's finding (which, although referring to a permanent impairment, believed that claimant would not likely affect claimant's "ranges of motion"), did not establish that he was "unable to repetitively use a body area due to a chronic and permanent medical condition" as required by former OAR 436-35-320(5) for a "chronic condition" permanent disability award.
The court also rejected claimant's challenge to the Department's adoption of temporary rules regarding the disability standards. Relying on Ferguson v. U.S. Epperson Underwriting, 127 Or App 478, rev dismissed 321 Or 97 (1995), the court determined that the Department's subsequent adoption of permanent rules (which had incorporated the temporary rules) rendered claimant's challenge to the temporary rules moot.
Finally, the court addressed claimant's contention that the Board should have remanded the claim to the Department for the consideration of a temporary rule regarding his permanent impairment which was not addressed in the existing disability standards. See Gallino v. Courtesy Pontiac-Buick-GMC, 124 Or App 538 (1993). Noting that the medical arbiter's findings had been based only on the medical records (since claimant had not appeared for a physical examination), the carrier argued that the medical arbiter's reference to permanent impairment did not qualify as "medical evidence supported by objective findings" as required by amended ORS 656.005(19). Reasoning that the Board should first address the carrier's argument regarding the retroactively applicable amended version of the statute, the court remanded for reconsideration. The court cited Volk v. America West Airlines, 135 Or App 565, rev den 322 Or 645 (1996).
SUBJECT WORKER ("126(1)"):
TEMPORARILY OUT-OF-STATE
SAIF v. Moe, 142 Or App 62 (July 3, 1996). The court affirmed the Board's order in Todd E. Moe, 46 Van Natta 1752 (1994), which found that the deceased worker was an Oregon subject worker when he suffered a fatal injury while temporarily working out-of-state for his employer. Relying on ORS 656.126(1), the Board had found that the claim was compensable because both the decedent and his employer had intended to remain out-of-state only temporarily at the time of his death.
Citing Berkey v. Dept. of Ins. and Finance, 129 Or App 494, 498 (1994), Northwest Greentree, Inc. v. Cervantes-Ochoa, 113 Or App 186, 189 (1992), and Hobson v. Ore Dressing, Inc., 87 Or App 397, rev den 304 Or 437 (1987), the court identified the key inquiry as "the extent to which the claimant's work outside the state is temporary," which is determined by applying the "permanent employment relation test." Applying that test, the court noted that the decedent's employer had left some of its equipment in Oregon, retained its Oregon headquarters, maintained an Oregon bank account, accountant, lawyer, business address, telephone, automobile insurance, and supplier accounts, and continued to pay Oregon workers' compensation premiums. The court also referred to the decedent's retention of his Oregon driver's license and his automobile insurance, as well as his written intention to remain with his employer.
The court acknowledged that the employer had moved most of its equipment to the out-of-state site and the decedent had moved out-of-state and intended to remain for another possible job with the employer. Nevertheless, the court determined that there was substantial evidence to support the Board's conclusion that the decedent was working temporarily out-of-state at the time of his work-related fatality.
ALL-AGENCY MEETING -
OCTOBER 14, 1996
Practitioners are advised that the Workers' Compensation Board will be holding its All-Agency Meeting on Monday, October 14, 1996. All WCB employees are required to attend this all-day meeting. As a result, there will be no ALJ's or Board Members in offices on that day to conduct any business, e.g., to sign any proposed settlements, stipulations, or other agreements.
WCB 'WEB-SITE" -
BOARD ORDERS / INDEX
The Board now has a "Home Page" which is available on the Internet. The address is:
http://www.cbs.state.or.us/external/wcb/index.html
In addition to copies of its recent decisions (compiled by months), the Board's "Home Page" includes an index for significant and noteworthy Board orders. Questions regarding access to, and the use of, the Board's "Home Page" can be directed to Margie L. Stice (378-3308 ext. 306).
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:
Workers' Compensation Board
Attention: Jan Overman
2250 McGilchrist SE
Salem OR 97310