AGGRAVATION:
SYMPTOMATIC WORSENING -
NO PRIOR PPD AWARD
In Jason S. Palmer, 48 Van Natta 2394 (November 26, 1996), applying ORS 656.273(1), the Board held that, in the absence of a prior permanent disability award, an "actual worsening" is proven by an increase in symptoms, supported by objective findings, where the medical evidence establishes that the increased symptoms represent a worsening of the compensable condition. Relying on the analysis expressed in Carmen C. Neill, 47 Van Natta 2371 (1995), the Board continued to define an "actual worsening" as either: (1) a pathological worsening of the underlying condition; or (2) a symptomatic worsening of the compensable condition that is greater than anticipated by the prior award of permanent disability. Because there was no evidence of a pathological worsening and no prior award of permanent disability, the Board turned to the issue of whether a symptomatic worsening is sufficient to prove an "actual worsening" in the absence of a prior permanent disability award.
Based on its reasoning in Neill, and in light of the legislative history, the Board reiterated that the 1995 legislative changes were not meant to completely eliminate symptomatic worsening as a basis for establishing a compensable aggravation. Thus, in the absence of a prior permanent disability award, the Board determined that, if the persuasive medical evidence establishes that a symptomatic increase does in fact represent a worsening of the condition, then an "actual worsening" has been established. In reaching this conclusion, the Board noted the common dictionary definition of "actual" as "existing in fact or reality," Webster II New Riverside University Dictionary (1984), which was consistent with its determination that the plain language of the statute ("actual worsening") indicates that the worsening of a compensable condition must be established "in fact."
Applying its analysis to the case at hand, the Board relied on opinions from examining physicians (including the attending physician) which concluded that claimant's symptomatic increase represented a material worsening of his underlying condition. The Board noted that these opinions were consistent with a comparison of claimant's work restrictions following the stabilization of his condition following his original injury and those following his increased symptoms (some two and half years later). Citing ORS 656.273(1)(a), the Board acknowledged that a mere absence from work does not establish a worsened condition. Nevertheless, based on the persuasive medical evidence, the Board concluded that claimant's symptoms had worsened to the point that it represented an actual worsening of his compensable condition.
ATTORNEY FEE ("308(2)(d)"):
RESPONSIBILITY DENIAL -
"EXTRAORDINARY CIRCUMSTANCES"
In Steve H. Salazar, 48 Van Natta 2389 (November 29, 1996), in awarding claimant's counsel a $1,000 attorney fee under ORS 656.308(2)(d) for prevailing against a carrier's responsibility denial, the Board held that there were no "extraordinary circumstances" warranting an attorney fee award in excess of the $1,000 statutory requirement. The hearing concerning two carrier's responsibility denials involved one witness' testimony and a 32-page transcript. Some 33 exhibits were admitted at the hearing, including a 16-page deposition. Claimant's counsel also submitted brief written arguments at hearing, as well as on Board review.
After examining the aforementioned factors, the Board disagreed with the ALJ's determination that extraordinary circumstances justified an attorney fee beyond the $1,000 statutory limitation. For purposes of example, the Board considered the facts in the present case to be comparable with those in Tammy Locke, 48 Van Natta 250, 251 (1996), and Douglas H. Brooks, 48 Van Natta 736 (1996). In particular, the Board noted that, in Locke, there were two carriers, a 40-page transcript with one witness, and 26 exhibits (including a 50 minute deposition), whereas in Brooks, there were also two carriers, a 50-page transcript with three witnesses, 47 exhibits (including two depositions), and a 7-page respondent's brief.
CDA:
IMPOSSIBLE "CONTINGENT" EVENT
In Margaret Hoke, 48 Van Natta 2246 (November 6, 1996), the Board approved a Claim Disposition Agreement (CDA) despite a provision which stated that the disposition would be void and subject to withdrawal if a Determination Order subsequently awarded permanent disability. In submitting a CDA which released all of claimant's "non-medical service" benefits, the parties included a provision which stated that, should a Determination Order subsequently award permanent disability, the CDA would be void and subject to withdrawal.
Citing Lynda J. Thomas, 45 Van Natta 894, 895 (1993), the Board noted that it would ordinarily disapprove a CDA which was subject to the occurrence of a future uncertain event. The Board further stated that, since the "withdrawal" provision in the proposed CDA could conceivably be triggered more than 30 days after the submission of the agreement to the Board, the provision was theoretically in conflict with ORS 656.236(1)(a)(C) (which authorizes Board disapproval of a CDA if a party seeks disapproval within 30 days of the CDA' s submission).
Nonetheless, finding that the Department had already notified the parties that the determination of claimant's permanent disability would be stayed pending action on the CDA, the Board concluded that it was impossible for the contingent event to occur. Reasoning that the contingency was harmless and ineffective, the Board approved the proposed CDA.
CLAIM PROCESSING ("262(7)(a)):
"NEW MEDICAL CONDITION" CLAIM
MUST PRECEDE HEARING REQUEST
In Diane S. Hill, 48 Van Natta 2351 (November 26, 1996), applying amended ORS 656.262(7)(a), the Board held that a hearing request concerning an unaccepted condition was premature where a "new medical condition" claim had not been filed with the carrier prior to the filing of the hearing request and the carrier had challenged the propriety of the compensability proceeding. Claimant, who had an accepted bilateral wrist condition, developed left shoulder and trapezius problems. In response to a carrier's inquiry, claimant's attending physician reported that the major cause of the problem was an alteration of claimant's biomechanics of her hand use, as well as pain from her median and ulnar nerves. Thereafter, claimant filed a hearing request, raising as an issue a "de facto" denial of the trapezius and shoulder condition.
The Board concluded that the hearing request on the "new medical condition" claim was premature. Citing ORS 656.262(7)(a), the Board determined that claimant must "clearly request formal written acceptance of the [new medical] condition" before a carrier is obligated to issue a written acceptance or denial. Based on the text and context of ORS 656.262(7)(a), the Board reasoned that the legislature intended to require a worker who wished to file a new medical condition claim to do so through a formal written request for acceptance of the claim before requesting a hearing. Referring to its holding in Shannon E. Jenkins, 48 Van Natta 1482 (1996), the Board noted that such an interpretation was consistent with the legislative history. Finally, in light of the considerable administrative time and expense incurred in acknowledging and scheduling a hearing, the Board stated that its statutory interpretation avoided needless expenditures of resources where the matter could be resolved simply through improved communication.
Turning to the record, the Board found that neither the attending physician's report nor claimant's hearing request satisfied the statutory prerequisite. Noting that the report was silent on the issue of acceptance, the Board concluded that the report did not "clearly request formal written acceptance" of the unaccepted conditions. Furthermore, considering its conclusion that a request for formal written acceptance of a new medical condition claim must precede a hearing request, and since the carrier challenged the propriety of proceeding with the compensability litigation, the Board held that claimant was precluded from contesting the compensability of the unaccepted conditions at hearing. Finally, even if the hearing request could constitute a "new medical condition" claim, the Board concluded that the request did not satisfy the statute because it lacked a clear request for formal written acceptance of the new medical condition.
In reaching its conclusion, the Board emphasized that its decision should not be construed as prohibiting parties from waiving procedural arguments and agreeing to litigate such compensability issues. The Board cited EBI Companies v. Thomas, 66 Or App 105 (1983).
Chair Hall and Member Biehl dissented, disagreeing with the majority's interpretation of ORS 656.262(7)(a) and its decision to extend the Jenkins rationale. Noting that the statute expressly states that a "new medical condition" claim may be initiated at any time, the dissent contended that there is no statutory requirement that such a claim precede a hearing request. Moreover, stating that the statute only requires that a "new medical condition" claim "clearly request" formal written acceptance of the claim and does not prescribe any form requirement, the dissent argued that claimant's hearing request raising the issue of "de facto" denial for the unaccepted conditions satisfied the statutory requirement.
Finally, Members Hall and Biehl acknowledged that the majority's concerns regarding the "practicalities of [the Board's] administrative process" had some surface appeal. Nevertheless, reasoning that the majority's rationale was effectively rewriting the statute, the dissent concluded that such a responsibility rested with the legislature, not the Board.
CLAIM PROCESSING ("262(7)(a)):
"NEW MEDICAL CONDITION" CLAIM
RETROACTIVELY APPLICABLE
In Brian D. Shipley, 48 Van Natta 2280 (November 13, 1996), on reconsideration of its initial order, 48 Van Natta 994 (1996), the Board continued to hold that the Hearings Division was without authority to consider the compensability of claimant's cervical condition because he had not filed a "new medical condition" claim under ORS 656.262(7)(a). In determining that the statute was retroactively applicable, the Board found that the statutory change had not altered a procedural time limitation. See Section 66(6) of SB 369. Rather, the Board reasoned that the statutory change formalized the event that triggers the running of the already existing statutory 90-day period within which a carrier can either accept or deny a claim.
Turning to an application of the statute, the Board found it unnecessary to resolve the question of whether a hearing request can also constitute a "new medical condition" claim under ORS 656.262(7)(a). See Shannon E. Jenkins, 48 Van Natta 1482 (1996) (hearing request is not "communication in writing" pursuant to ORS 656.262(6)(d)). In doing so, the Board reasoned that claimant's hearing request raising "compensability" as an issue did not satisfy the statutory requirement that claimant clearly request formal written acceptance of the new medical condition claim. Consequently, the Board dismissed claimant's hearing request on the compensability issue as premature.
CLAIM PROCESSING:
"IN LIEU OF" PROVISION IN RECON ORDER
PERTAINS TO "DO" AWARD
In Gregory K. Wallace, 48 Van Natta 2307 (November 19, 1996), the Board held that a carrier was not required to repay claimant's previously paid permanent disability (PPD) award at a rate of $347.51 per degree under amended ORS 656.214(2) because that award had become final. Pursuant to an unappealed 1991 Determination Order (DO), claimant's 38 percent scheduled PPD award was paid at a rate of $145 per degree under former ORS 656.214(5). Following claimant's aggravation, the claim was reclosed by a November 1994 DO, which increased claimant's PPD award to 42 percent. After both parties sought reconsideration, a July 1995 Order on Reconsideration reduced the award to 38 percent. Quantifying the award in an amount commensurate with a PPD rate of $145 per degree, the Order on Reconsideration stated that the award was "in lieu of all previous awards in this claim." Thereafter, claimant requested a hearing, contending that the carrier was obligated to pay the 38 percent award at a rate of $347.51 per degree.
The Board rejected claimant's contention. Noting that the "in lieu of" provision appeared immediately after the statement which quantified the amount of the award (which equated to claimant's 1991 PPD award at a rate of $145 per degree), the Board reasoned that the Order on Reconsideration did not create a new PPD award payable at the current rate of $347.51 per degree.
The Board found further support for its conclusion in former OAR 436-30-135(7)(a), which provides that "compensation reduced in a reconsideration order shall be 'in lieu of' any compensation awarded by the Notice of Closure or Determination Order." Based on this rule, the Board determined that the "in lieu of" language in the Order on Reconsideration pertained to the increased PPD award that had been granted in the 1994 DO and did not represent a new PPD award that superseded the final award made under the unappealed 1991 DO. Concluding that the Order on Reconsideration merely reinstated the final PPD award granted by the unappealed 1991 DO which had already been fully paid, the Board held that claimant was not entitled to any additional compensation as a result of the reconsideration order.
CONSEQUENTIAL CONDITION:
"STROKE" DUE TO DIAGNOSTIC SCAN
In Larry G. Newth, 48 Van Natta 2331 (November 22, 1996), the Board held that claimant's stroke, which arose from a radioisotopic injection during a diagnostic bone scan for his compensable ankle condition, was a compensable consequential condition under ORS 656.005(7)(a)(A). When claimant's symptoms from a compensable ankle condition did not resolve, his attending physician ordered a diagnostic bone scan. Shortly after receiving a radioisotopic injection, claimant suffered a stroke. The carrier denied the stroke based on medical and legal grounds.
The Board rejected the carrier's contentions. Based on the medical evidence, the Board was persuaded that claimant's "post-injection" symptoms were gradual in onset and, as such, likely thrombotic and injection-related. Furthermore, finding that claimant's stroke resulted directly from his attending physician's prescribed compensable injury-related bone scan injection, the Board reasoned that the consequential stroke was deemed compensable because it flowed no less "directly and inexorably" from the original ankle injury than a consequential injury incurred during "reasonable and necessary" medical treatment for a compensable condition as in Barrett Business Services v. Hames, 130 Or App 190, rev den 320 Or 492 (1994). See also Finch v. Stayton Canning Co., 93 Or App 168, 173 (1988); Priscilla J. Bosley, 43 Van Natta 380, 384 (1991). Finally, the Board distinguished Robinson v. Nabisco, Inc., 143 Or App 59 (1996), where an injury incurred during an independent medical examination was not held to be a compensable consequential condition.
COURSE & SCOPE:
FALL ON "ICY" LEASED PARKING LOT
In Margaret A. Kohl, 48 Van Natta 2492 (December 18, 1996), the Board held that claimant's "parking lot" fall on an icy lot occurred in the course and scope of her employment because her employer exercised some actual control over the parking lot through its lease with its landlord. The Board acknowledged that, based on the lease, the landlord was responsible for maintenance of the parking lot. Nonetheless, the Board further noted that, if the landlord failed to maintain the premises in a "hazard-free" condition, the employer was authorized to contract for necessary labor, equipment and material to bring the premises within requirements of the lease. In light of such circumstances, the Board concluded that claimant was injured by a hazard associated with premises over which the employer had at least "some control." The Board cited Cope v. West American Ins. Co., 309 Or 232, 238 (1990), and Henderson v. S.D. Deacon Corporation, 127 Or App 333, 338-39 (1994).
Member Haynes dissented. Arguing that there was no evidence of any actions or special hazards created by the employer in a parking lot adjacent to the employer's building, Haynes asserted that the employer had not manifested control over the parking lot. Noting that the employer neither owned nor leased the parking lot, Member Haynes reasoned that the lease provision relied on by the majority created a connection too tenuous to support its finding of a work-connection.
COURSE & SCOPE:
SUPERVISOR ASSAULT -
WHILE ON BUSINESS TRIP
In Donna A. Goodman-Herron, 48 Van Natta 2434 (December 10, 1996), the Board held that claimant's injury, which occurred when her supervisor assaulted her while on a business trip, was not compensable because the injury did not arise out of her employment. Reasoning that the holding in Carr v. U.S. West Direct Co., 98 Or App 30 (1989) was binding precedent, the Board determined that the fact that claimant's employment placed her and her supervisor together was not, in itself, sufficient to establish a causal link between the assault and the risk connected with her employment.
Member Christian specially concurred. Were she writing on a clean slate, Christian remarked that she would find a sufficient causal relationship between claimant's assault and her employment. However, in light of the Carr holding, Member Christian concluded that claimant had not proven that her injuries "arose out of" her employment because the evidence did not establish that her supervisor's assault and harassment were provoked by anything related to her employment.
Chair Hall dissented. Reasoning that Carr was an appellate review of a trial court's summary judgment, Hall argued that Carr did not stand for the proposition that all sexual assaults by a supervisor against an employee fall outside the course and scope of employment. Contending that each case must be evaluated on its own facts to determine whether a claimant's employment created or enhanced the risk of assault, Chair Hall asserted that the requisite work connection had been established where claimant's hotel room where she was assaulted essentially served as the field office during the business trip and the assault occurred after they had been preparing for the following day's business meetings.
COURSE & SCOPE:
TRAVELLING EMPLOYEE -
DISTINCT DEPARTURE
In David L. Wood, 48 Van Natta 2546 (December 23, 1996), the Board held that claimant's injury from a motor vehicle accident, which occurred while returning in his employer's vehicle to his employer's camp site after an evening of drinking with a co-worker, did not arise out of the course and scope of his employment. Claimant was required by his employer to stay at a camp site and was transported daily to his work site. While at the camp site, employees were permitted to use the employer's vehicle to drive to a nearby town for food and personal hygiene. On the day in question, claimant and co-worker sought permission to drive the vehicle into town. Noting that the co-worker had been drinking alcohol, the employer's supervisor advised them that another worker (who had not been drinking) would drive the vehicle. Notwithstanding this admonition, claimant, with the co-worker driving, left the camp site in the vehicle and, after an evening of drinking alcohol, was injured when the vehicle ran off the road.
To begin, the Board found that claimant was a "travelling employee" because travel was a necessary incident of his employment. See SAIF v. Reel, 303 Or 210 (1987); Rolland R. Duby, 45 Van Natta 2335 (1993). Considering his status as a "travelling employee," the Board noted that he was continuously within the course and scope of his employment, except when engaged in a distinct departure on a personal errand. See Savin Corp. v. McBride, 134 Or App 321, 325 (1995); Proctor v. SAIF, 123 Or App 326, 330 (1993). Reasoning that the activity that resulted in claimant's injury was not reasonably related to his status as a travelling employee and was specifically prohibited by his employer, the Board concluded that claimant was engaged in a distinct departure on a personal mission.
EXTENT: EVIDENCE
"283(7)" LIMITATION N/A -
"VOCATIONAL CONSULTANT" TESTIMONY ("287(1)")
In Virginia McClearen, 48 Van Natta 2536 (December 23, 1996), the Board held that vocational reports are admissible evidence at hearings concerning entitlement to permanent total disability (PTD), provided that the reports were previously submitted at reconsideration and the vocational consultant who authored the reports is made available for cross-examination at the adverse party's request. The Board extended its holding in Joe R. Ray, 48 Van Natta 325, recon 48 Van Natta 458 (1996), which involved permanent partial disability (PPD), to conclude that the statutory exclusion of "post-reconsideration" in amended ORS 656.283(7) applies to PTD hearings as well.
Noting that the "post-reconsideration" evidence in this case included the reports and testimonies of vocational consultants, the Board addressed whether ORS 656.287(1), which provides for the admission of expert vocational evidence, is an exception to the evidentiary limitation in amended ORS 656.283(7). Based on an analysis of ORS 656.287(1)'s text, context and legislative history, the Board concluded that the statute applies in hearings regarding entitlement to PTD or unscheduled PPD. Because the text of ORS 656.287(1) sets forth conditions for admission of vocational reports, the Board reasoned that the statute is not a blanket authorization for admission of any expert vocational evidence at hearing. Further, when ORS 656.287(1) is viewed in the context of amended ORS 656.283(7) which clearly limits evidence at hearing to evidence submitted at reconsideration, the Board declined to broadly interpret ORS 656.287(1) as a grant of authority to admit "post-reconsideration" vocational evidence at hearing. Rather, in order to best harmonize the statutes, the Board concluded that ORS 656.287(1) is a grant of authority to admit vocational reports at hearing so long as: (1) the reports were previously submitted at reconsideration; and (2) the other requirements of ORS 656.287(1) are fulfilled, including the condition that the vocational consultant whose report is being offered into evidence is made available for testimony and cross-examination at hearing, upon request by the adverse party.
The Board further concluded that if the adverse party elects to cross-examine the vocational consultant at hearing, the consultant's testimony is admissible at hearing and is not subject to the evidentiary limitation in amended ORS 656.283(7). The Board based its conclusion on the text of ORS 656.287(1) which appears to contemplate that the adverse party's right to cross-examination will be exercised at the same "compensation hearing" at which the vocational consultant's report is offered into evidence. Reasoning that the legislature intended the term "compensation hearing" to refer to the hearing before an ALJ at the Board's Hearings Division, the Board concluded that if the vocational consultant is made available for cross-examination at hearing, and the adverse party exercises that right, the consultant's testimony at hearing must also be admissible.
Board Chair Hall specially concurred, disagreeing with the majority's conclusion that "post-reconsideration" testimony by a vocational consultant is admissible at hearing. Citing Joe R. Ray, supra, Hall stated that under the current statutory scheme for review of claim closure/rating, the reconsideration proceeding, for all practical purposes, is the "hearing" at which parties must first raise issues and submit all relevant evidence, while the hearing at the Hearings Division is an appellate review. Under this scheme, Hall believed the majority's decision was inconsistent because it requires that vocational reports be submitted first at reconsideration but then allows admission of "post-reconsideration" vocational testimony. Because the admissibility of vocational reports and the proviso (i.e., that the vocational consultant preparing the report must be made available for cross-examination) are addressed in the same paragraph of ORS 656.287(1), Hall concluded that both vocational reports and vocational testimony are subject to the same evidentiary restriction in amended ORS 656.283(7).
EXTENT:
IMPEACHMENT EVIDENCE -
INADMISSIBLE UNLESS IN "RECON RECORD"
In Tim L. Besheone, 48 Van Natta 2337 (November 26, 1996), interpreting ORS 656.283(7), the Board held that impeachment evidence, which was not submitted during the reconsideration proceeding and was not a part of the reconsideration record, was not admissible at a subsequent hearing concerning the extent of permanent disability arising from an appeal of an Order on Reconsideration. At hearing regarding claimant's appeal of an Order on Reconsideration's permanent disability award, a carrier sought to introduce medical reports and testimony which had not been part of the reconsideration record. Relying on ORS 656.283(7), claimant contended that such evidence was inadmissible.
The Board agreed with claimant's contention. In reaching its conclusion, the Board discussed the interplay between the section of the statute that allows admissibility of impeachment evidence in certain circumstances and the section of the same statute that limits admissibility of "[e]vidence on an issue regarding a notice of closure or Determination Order that was not submitted at the reconsideration required by ORS 656.268."
The Board rejected the carrier's argument that impeachment evidence can always be withheld and subsequently introduced in a later proceeding. Reasoning that a hearing arising from an Order on Reconsideration constitutes a level of appellate review, the Board determined that the record regarding a worker's permanent disability has essentially been "frozen" following the reconsideration proceeding and that no new evidence may be introduced by either party. In light of such circumstances, the Board concluded that the statutory provision that allows a party to withhold impeachment evidence "until the opposing party's case in chief has been presented, at which time the impeachment evidence may be used" does not apply in a subsequent hearing concerning the extent of a worker's permanent disability. Citing ORS 174.010 and PGE v. BOLI, 317 Or 606, 611 (1993), the Board considered its interpretation to be consistent with the first level of statutory analysis to give effect to all statutory provisions, if possible.
Although unnecessary to do so, the Board addressed the legislative history. Finding no indication that the legislature intended to allow impeachment evidence at hearing that was not submitted at reconsideration and included in the reconsideration record, the Board reasoned that the history (especially comments that the statute "speaks for itself") provided further support for its conclusion that the legislature did not intend to allow impeachment evidence to be introduced in "post-reconsideration" proceedings.
The Board also disagreed with the carrier's assertion that its impeachment evidence was admissible under ORS 656.268(8) because the evidence addressed an issue which "arose out of the reconsideration itself." The Board first reasoned that, if the carrier believed that claimant had given false findings during the medical arbiter exam, it should have raised the issue during reconsideration. Moreover, if the carrier's argument was accepted, the Board concluded that the admission of such "post-reconsideration" evidence would eviscerate the explicit limitations regarding the admissibility of "post-reconsideration" evidence under ORS 656.268(8) and 656.283(7). Cecil L. Wilmarth, Jr., 48 Van Natta 1194 (1996). Finally, even if the impeachment evidence issue "arose out of the reconsideration order itself," the Board determined that the statutory scheme did not allow for the introduction of new evidence at the hearing. See Cathy M. Montgomery, 48 Van Natta 1170 (1996).
EXTENT:
"PARTY SOLICITED PRE-RECON" ARBITER REPORT
ADMISSIBLE UNDER "283(7)" -
BUT NOT CONSIDERED IN RATING ("268(7)")
In Constance I. Gassner, 48 Van Natta 2596 (December 31, 1996), the Board held that a supplemental medical arbiter report, which was solicited by a party and present in the Director's reconsideration record, was admissible at hearing under ORS 656.283(7), but could not be considered in rating permanent disability because the report did not constitute a "medical arbiter" report under ORS 656.268(7). After issuing the initial medical arbiter report, the arbiter issued a supplemental report responding to an inquiry from the carrier. In that supplemental report, the arbiter stated that claimant's range of motion findings were invalid and that claimant was capable of performing the tasks listed in a particular job description. The supplemental report was submitted to the Department at reconsideration and, following the reconsideration order, included with the reconsideration record which was presented at the hearing.
Relying on Daniel L Bourgo, 46 Van Natta 2505 (1994), aff'd Tinh Xuan Pham Auto v. Bourgo, 143 Or App 73 (1996), claimant contended that the supplemental report should not be considered because the report had been requested by a party. The Board agreed. Noting that Bourgo applied former ORS 656.268(7) (which provided that no "post-arbiter" medical evidence is admissible before the Department), the Board reasoned that the present case was subject to amended ORS 656.268(7)(g) (which states that "[a]fter reconsideration, no subsequent medical evidence of the worker's impairment is admissible"). In light of such circumstances, the Board concluded that ORS 656.268(7) no longer prohibits the admission of medical evidence of impairment subsequent to the medical arbiter's report provided that the report is submitted prior to the reconsideration order.
The Board further determined, however, that the supplemental report from the medical arbiter may not be considered in rating claimant's disability. The Board noted that only the opinions of the attending physician and the medical arbiter, if any, may be considered in rating disability. Though the term "medical arbiter" is not defined by statute, the Board reasoned that the arbiter's function is clear from the text of ORS 656.268(7) and the legislative history surrounding implementation of the medical arbiter procedure in 1990. Based on the text of ORS 656.268(7), the Board found that the function of the medical arbiter is to make impairment findings and report those findings to the Department in cases where there is disagreement with impairment findings or there is insufficient medical information available to determine impairment. Furthermore, based on the 1990 legislative history, as discussed in Bourgo, the Board reiterated that the medical arbiter procedure was implemented to further the legislative purpose of providing a nonlitigious, less costly administrative forum for resolving disputes over extent of disability. Given that purpose, the Board reasoned that allowing a party to solicit a report from the medical arbiter would undermine the arbiter's objectivity and arguably make the arbiter a witness for that party, thus interfering with the arbiter's statutory function to make impairment findings and report those findings to the Department.
Finally, the Board distinguished ORS 656.268(6)(a) which permits a party to correct erroneous information in the reconsideration record or submit medical evidence that should have been but was not submitted by the attending physician. Reasoning that ORS 656.268(6)(a) does not permit a party to solicit opinions from the medical arbiter, whereas ORS 656.268(7)(a) provides for the Director to appoint a medical arbiter, the Board concluded that the medical arbiter procedure is conducted independently of the parties' efforts to correct any erroneous information and/or supplement medical information in the reconsideration record.
EXTENT:
"POST-ATP" NOC - "MS" PRE-SB 369
NO "RECON" REQUIRED -
NO "283(7)" EVIDENTIARY LIMIT
In Mary A. Longoria, 48 Van Natta 2466 (December 17, 1996), the Board held that, where an extent hearing pertained to a "post-Authorized Training Program (ATP)" Notice of Closure and claimant's condition became medically stationary before the June 7, 1995 effective date of SB 369, the evidentiary limitations of amended ORS 656.283(7) were not applicable. Following a "post-ATP" Notice of Closure, claimant requested a hearing. Contending that claimant was required to first seek reconsideration before the Director, the carrier sought dismissal of claimant's hearing request.
The Board rejected the carrier's contention. Citing Weyerhaeuser v. Purdy, 130 Or App 322 (1994), and Richard LaFrance, 48 Van Natta 427 (1996), the Board reasoned that, since claimant became medically stationary prior to the effective date of the 1995 amendments to ORS 656.268(9), reconsideration review was not a prerequisite to a hearing request from a "post-ATP" Notice of Closure or Determination Order.
Turning to the evidentiary issue, the Board also disagreed with the carrier's assertion that only evidence submitted at the reconsideration proceeding was admissible at the hearing. Inasmuch as reconsideration had not been required, the Board determined that the evidentiary limitation of amended ORS 656.283(7) was not applicable. The Board relied on Jamil Ghores, 48 Van Natta 607, n.1 (1996).
Addressing the merits of the extent issue, the Board found that, based on the medical evidence, claimant's compensable contact dermatitis condition fell within the Class I category. Consequently, the Board concluded that claimant was entitled to a 3 percent scheduled permanent disability award under OAR 436-35-110(5).
Chair Hall concurred in those portions of the majority's opinion which pertained to the jurisdiction and evidentiary issues. However, based on the medical evidence of permanent restrictions, coupled with claimant's credible testimony that she required assistance with a number of daily living activities, Hall argued that she had established a Class II impairment under the Director's disability standards. In reaching his conclusion, Chair Hall reasoned that, instead of focusing on a medical expert's use of a legal term (Class I impairment), the appropriate method was to review the medical record to determine the extent of claimant's symptoms and restrictions and then decide whether those symptoms and restrictions fell into Class I or II impairment.
EXTENT:
"SUPPLEMENTAL POST-RECON" ARBITER REPORT
ADMISSIBLE AT HEARING -
"268(6)(e)" EXCEPTION TO "283(7)"
In Larry A. Thorpe, 48 Van Natta 2608 (December 31, 1996), the Board held that a "post-reconsideration order / clarification" medical arbiter report is admissible at hearing under ORS 656.268(6)(e) even though it was not considered during the reconsideration proceeding. After receiving a medical arbiter report, the Department sought clarification of the arbiter's findings. Prior to receiving this clarification report, the Department issued an Order on Reconsideration. At the subsequent hearing, the carrier objected to the "post-reconsideration" clarification report's admission, contending that the report was not included in the reconsideration record as required by ORS 656.283(7). The Board disagreed. Citing Daniel L. Bourgo, 46 Van Natta 2505 (1994), aff'd Tinh Xuan Pham Auto v. Bourgo, 143 Or App 73 (1996), the Board determined that ORS 656.268(6)(e) permits the admission at hearing of a medical arbiter report which was requested by the Department during the reconsideration process, but was not prepared in time for consideration prior to issuance of the reconsideration order.
The Board acknowledged that ORS 656.283(7) could be construed to preclude admission of a medical arbiter report simply because that report was not submitted in time to be used by the Department on reconsideration. See also Precision Castparts Corp. v. Plummer, 140 Or App 227 (1996). Nevertheless, reasoning that the statute could not be harmonized with ORS 656.268(6)(e), the Board concluded that the specific exception for admitting a "post-reconsideration order" medical arbiter report in "268(6)(e)" controlled over the general evidentiary prohibition of ORS 656.283(7). The Board relied on ORS 174.020 and State v. Guzek, 322 Or 245, 268 (1995).
Finally, citing Bourgo and Constance I. Gassner, 48 Van Natta 2596 (December 31, 1996), the Board emphasized the ORS 656.268(6)(e) exception to ORS 656.283(7) was limited to initial medical arbiter reports that were requested, but not completed, before the statutory time for reconsideration had expired or to "supplemental" or "clarifying" reports when that arbiter report had been requested by the Department or when the arbiter's initial report had indicated that it was incomplete.
JURISDICTION:
NO REVIEW AUTHORITY -
DIRECTOR'S ORDER DENYING RECON
In James W. Jordan, 48 Van Natta 2602 (December 31, 1996), the Board held that the Hearings Division lacks jurisdiction to consider claimant's appeal from a Director's Order Denying Reconsideration which had found that claimant's request for reconsideration of a Notice of Closure (NOC) was untimely filed. Some 18 months after a carrier's NOC, claimant requested reconsideration. In submitting the request, claimant contended that the carrier had neglected to mail a copy of the NOC to either him or his attorney. Finding that the request was untimely, the Department issued an Order Denying Reconsideration. The order contained a provision stating that, if dissatisfied, a party had 30 days to request a hearing before the Director. Rather than requesting a hearing with the Director, claimant filed a hearing request with the Board's Hearings Division. Following the hearing, an earlier ALJ found that claimant's reconsideration request was timely and remanded the claim to the Department for the issuance of an Order on Reconsideration. The earlier ALJ's order was not appealed. Thereafter, claimant sought another hearing seeking "enforcement" of the earlier ALJ's order and objecting to the Department's refusal to accept remand from the earlier ALJ.
Reasoning that claimant was required to request a hearing before the Director contesting the Department's Order Denying Reconsideration, the Board concluded that the earlier ALJ lacked jurisdiction to consider claimant's initial hearing request and to remand the claim to the Director. Consequently, although the present ALJ had authority to consider claimant's hearing request regarding "enforcement" of the earlier ALJ's order, the Board determined that, since the earlier order was invalid, there was no valid order for the present ALJ to "enforce."
Citing ORS 656.268(6)(f), the Board noted that a dissatisfied party has 30 days to request a hearing from a "reconsideration order." However, because the Department's order denied reconsideration, the Board found that claimant's hearing request did not pertain to a "reconsideration order." In support of this conclusion, the Board referred to Guardado v. Simplot, 137 Or App 95 (1995), where the court had reviewed a direct appeal from a Department order affirming a hearing officer's order denying a claimant's request for reconsideration.
The Board distinguished SAIF v. Roles, 111 Or App 597 (1992), which had held that, even though an ALJ had erroneously awarded temporary disability on review of already final Determination Orders, the ALJ's order was enforceable because the statutory scheme allowed for ALJ review of Determination Orders. In contrast to Roles, the Board reasoned that the statutory scheme does not provide for ALJ review of Department orders denying reconsideration.
Finally, the Board found that claimant's initial hearing request from the Order Denying Reconsideration did not involve a "matter concerning a claim" under ORS 656.283(1) and 656.704(3). Analogizing its rationale to that expressed in Lankford v. Copeland, 141 Or App 138 (1996), the Board reasoned that an order denying reconsideration does not directly affect the amount of, or entitlement to, compensation in that, if such an order is overturned, reconsideration would be conducted.
Chair Hall has submitted a dissenting opinion. Reasoning that the statutory scheme neither provides for nor contemplates the Director's issuance of an order denying reconsideration which are subject to review by the court under the Administrative Procedures Act, Hall argued that the Director's "reconsideration order" (whether "on" or "denying" reconsideration) is subject to review before the Board's Hearings Division.
In support of his conclusion, Chair Hall noted that ORS 656.262(6)(d) provides that, in those claims where an order on reconsideration has not issued timely, "reconsideration shall be deemed denied and any further proceedings shall occur as though an order on reconsideration affirming the notice of closure or determination order was mailed." Furthermore, Hall found no distinction in the applicable statute between orders on reconsideration and orders denying reconsideration.
Finally, since ORS 656.268 specifically vested the Board's Hearings Division with review authority over "reconsideration orders," Chair Hall contended that the legislature had fully expressed its intention that such orders are "matters concerning a claim" because they directly involve a worker's right to receive compensation. Finding no provision expressly excluding orders denying reconsideration from "matters concerning a claim" under ORS 656.704, Chair Hall concluded that all Department "reconsideration orders" are subject to the Board's review authority.
MEDICAL SERVICES:
"225" NOT APPLICABLE -
NOT SOLELY DIRECTED TO PREEXISTING CONDITION
In Daniel G. Evans, 48 Van Natta 2425 (December 9, 1996), the Board held that ORS 656.225 was not applicable in determining the compensability of claimant's medical services claim for an anterior cruciate ligament (ACL) instability because his knee surgery was not solely directed to that preexisting condition. While accepting an "internal derangement" of claimant's left knee, a carrier denied his ACL reconstructive surgery. Contending that the surgery was solely directed to the preexisting ACL condition, the carrier argued that the surgical procedure was not compensable under ORS 656.225.
The Board held that ORS 656.225 was not applicable. Relying on the opinion from claimant's attending surgeon, the Board found that, unless the ACL reconstruction procedure had not been performed during the debridement procedure for claimant's compensable derangement condition, the healing process from the debridement would have been compromised. Reasoning that the ACL reconstruction was partially performed to benefit the healing process for claimant's compensable knee injury, the Board concluded that ORS 656.225 did not apply because the medical treatment was not solely directed to the preexisting ACL condition. The Board cited Colin J. McIntosh, 47 Van Natta 1965 (1995).
Notwithstanding its reasoning regarding the inapplicability of ORS 656.225, the Board determined that claimant's disability and need for medical treatment for the ACL condition was still not compensable. Based on the attending surgeon's opinion, the Board found that claimant's work injury had combined with his preexisting ACL condition. Applying ORS 656.005(7)(a)(B) and ORS 656.245(1)(a), the Board concluded that the medical services were not compensable because the services were not directed to medical conditions caused in major party by the work injury.
OBJECTIVE FINDINGS:
LEGAL, NOT MEDICAL, TERM
In Patricia J. Hofstetter, 48 Van Natta 2302 (November 19, 1996), the Board held that claimant's injury claim was supported by "objective findings" as required by ORS 656.005(19) even though her attending physician had described claimant's examination findings as not "objective." In reporting "decreased muscle spasm in both shoulders and upper trapezius musculature bilaterally," claimant's attending physician indicated that there were no "objective findings" supporting her left shoulder injury.
Based on the attending physician's undisputed statement, the Board found that claimant had a muscle spasm in her left shoulder and left trapezius musculature. Citing ORS 656.005(19), and Naomi Whitman, 48 Van Natta 605, on recon 48 Van Natta 891 (1996), the Board concluded that the physician's finding satisfied the legal definition of "objective findings." In reaching its conclusion, the Board repeated that, since "objective findings" is a legal (as opposed to medical) term, a physician's opinion that examination findings do not constitute objective findings was irrelevant when those findings otherwise satisfy ORS 656.005(19). See Catherine Gross, 48 Van Natta 99 (1996).
PPD RATE:
IF ARISES FROM CLOSURE -
MUST RAISE DURING "RECON"
In Ferral C. Crowder, 48 Van Natta 2322 (November 21, 1996), the Board held that, since claimant had not challenged the rate of his unscheduled permanent disability (PPD) award granted by a Determination Order (DO) during the reconsideration proceeding, he was precluded from raising the issue at hearing. In awarding claimant unscheduled PPD, an August 1994 DO specified a dollar amount which was equivalent with a rate of $100 per degree. Following claimant's reconsideration request, a May 1995 Order on Reconsideration affirmed the DO's unscheduled PPD award and granted scheduled PPD. At hearing, claimant contended that his PPD awards were payable at the higher rates set forth in amended ORS 656.214.
The Board rejected claimant's contention, insofar as it pertained to the unscheduled PPD award. Inasmuch as it was apparent that claimant's unscheduled PPD award had been calculated at a certain rate, the Board reasoned that it was incumbent on claimant to have raised his objection during the reconsideration proceeding. In reaching its conclusion, the Board relied on amended ORS 656.283(7) and William T. Masters, 48 Van Natta 1788 n.1 (1996) (where the rate of temporary total disability issue arose from claim closure, because the issue was not raised during reconsideration it could not be raised at hearing).
The Board acknowledged that the 1995 statutory amendments took effect after the reconsideration order issued. Nonetheless, the Board disagreed with claimant's assertion that the issue could not have been raised on reconsideration. In addition, the Board reasoned that the fact that a change in the law took effect after the reconsideration order did not remove the statutory prohibition against raising claim closure issues at hearing that were not first raised on reconsideration.
Finally, the Board concluded that claimant was entitled to raise at hearing the scheduled PPD rate issue. Noting that the scheduled PPD rate issue had arisen from the reconsideration order itself, the Board determined that such circumstances established the one exception to amended ORS 656.283(7)'s prohibition.
Chair Hall dissented. Reasoning that the PPD rate does not exclusively arise out of claim closure and in this particular case did not arise until after issuance of the reconsideration order (when the statutory amendment became effective), Hall argued that amended ORS 656.283(7) did not preclude claimant from raising the unscheduled PPD rate issue at hearing. Furthermore, asserting that it would have been impossible for claimant to anticipate the preclusive effect of amended ORS 656.283(7) and raise the unscheduled PPD rate issue on reconsideration before the amended statute had even taken effect, Chair Hall contended that retroactive application of the statutory amendment would be absurd and unjust. See Rick A. Webb, 47 Van Natta 1550 (1995); Ida M. Walker, 43 Van Natta 1402 (1991).
PRE-CLOSURE DENIAL ("262(7)(b)"):
APPLIES TO "ACCEPTED" COMBINED CONDITION
In Robin M. Spivey, 48 Van Natta 2363 (November 26, 1996), the Board held that the requirements concerning a "pre-closure" denial of a combined condition pursuant to ORS 656.262(7)(b) are applicable only when a "combined condition" has been accepted, either voluntarily or by means of a litigation order. Claimant had an accepted cervical strain. A medical arbiter's report indicated that 90 percent of claimant's lost range of cervical motion was due to a preexisting degenerative condition and 10 percent due to the compensable cervical strain. Noting that the carrier had not issued a denial of the "combined condition" prior to closure under ORS 656.262(7)(b), claimant asserted that his entire impairment must be attributed to his compensable injury.
The Board disagreed with claimant's contention. Since neither the preexisting condition or a combined condition had been accepted, the Board reasoned that the carrier was not precluded from asserting that a portion of claimant's permanent disability was due to the non-accepted degenerative condition and, therefore, should not be considered in rating claimant's permanent disability.
In reaching its conclusion, the Board interpreted the statutory scheme as contemplating that a carrier's duty to process a non-accepted condition(s) is triggered by a claimant objecting to a Notice of Acceptance or making a claim for a new medical condition. The Board further noted that applying ORS 656.262(7)(b) where a combined condition had not been accepted would transfer claims processing functions to the Appellate Unit or the Hearing Division even though no claim for a combined condition had been made by claimant and the carrier had not been requested to process such a claim. Although able to discern the legislative intent based on the text and context of ORS 656.262(7)(b), the Board also found support for its conclusion in the legislative history.
Finally, the Board acknowledged that if a carrier had previously accepted a combined condition, then it would be required to issue a "pre-closure" denial under ORS 656.262(7)(b) or it would be precluded from asserting that a claimant's permanent impairment was not attributable to the compensable injury. However, the Board reiterated that the application of that provision was contingent upon a combined condition being previously accepted (voluntarily or by litigation order). Were it to interpret the statute in any other manner, the Board reasoned that it would effectively be requiring compensibility litigation within the "extent" rating process.
PREEXISTING CONDITION ("225"):
MEDICAL SERVICES - "SOLELY DIRECTED" -
INJURY - MAJOR CAUSE OF PATH. WORSENING
In Lynda F. Hansen, 48 Van Natta 2560 (December 24, 1996), the Board held that claimant's medical services for a preexisting condition were not compensable under ORS 656.225 because the services were not solely directed to the preexisting condition nor was her work injury the major contributing cause of a pathological worsening of the preexisting condition. Following claimant's slip and fall at work, the carrier accepted a cervical strain, but denied her medical services claim for treatment related to a preexisting degenerative condition.
Finding no evidence that claimant had sustained disability or required medical services "solely caused" or "solely directed" to her preexisting condition, the Board determined that the medical services claim for the preexisting condition did not satisfy the statutory requirement of ORS 656.225. Moreover, after reviewing the medical opinion offered by claimant's attending physician, the Board was not persuaded that claimant's work injury was the major contributing cause of a pathological worsening of the preexisting condition. Consequently, the Board concluded that the claim had not met the prerequisites prescribed in ORS 656.225(1).
PREMATURE DENIAL:
ARBITER REPORT - NOT "CLAIM"
In Robert W. Stephenson, 48 Van Natta 2287 (November 14, 1996), the Board held that a carrier's denial was premature because it was based on a medical arbiter report. Evaluating claimant's permanent impairment due to his accepted spray exposure claim, a medical arbiter attributed his impairment to an airways obstruction disease. When an Order on Reconsideration awarded no permanent disability under the accepted claim, claimant requested a hearing. Thereafter, the carrier issued a denial of the respiratory condition. Claimant then requested a hearing from the denial, but withdrew his appeal of the Order on Reconsideration.
The Board concluded that the carrier's denial was premature. Reasoning that the medical arbiter neither contemplated nor recommended any treatment for the respiratory condition, the Board determined that the arbiter report did not constitute a "claim." The Board cited Loreta C. Sherwood, 48 Van Natta 992 (1996).
The Board also disagreed with the carrier's assertion that claimant's hearing request from the Order on Reconsideration constituted a "claim." Even assuming that a hearing request could be a "claim," the Board determined that the request was insufficient to constitute a "new medical condition" claim under ORS 656.262(7)(a) because there had not been a clear request for formal written acceptance of the condition.
Finally, despite setting aside the denial, the Board found that claimant was not entitled to an attorney fee pursuant to ORS 656.386(1). Since claimant had not made a "claim," the Board reasoned that he would receive benefits as a result of the premature denial finding. Concluding that claimant had not "prevailed" over a denied claim, the Board declined to award an attorney fee under ORS 656.386(1). The Board relied on Jacquelyne M. Schulte, 48 Van Natta 1649, on recon 48 Van Natta 1873 (1996).
PREMATURE DENIAL:
NO "NEW MEDICAL CONDITION" CLAIM
In Ramona E. Hamilton, 48 Van Natta 2438 (December 12, 1996), the Board held that, in the absence of a "new medical condition" claim under ORS 656.262(7)(a), a carrier's "precautionary" denial was premature and invalid. Following closure of an accepted low back injury claim, claimant began receiving treatment for a degenerative arthritis and vascular condition. Thereafter, the carrier denied those conditions, contending that, under the court's holding in Deluxe Cabinet Works v. Messmer, 140 Or App 548 (1996), it was not required to wait for a new medical condition claim before it could clarify the scope of its acceptance.
The Board disagreed with the carrier's assertion. Reasoning that claimant had not "clear[ly] request[ed] formal written acceptance" of the new medical conditions, the Board concluded that no claim under ORS 656.262(7)(a) had been filed. The Board also rejected the carrier's concerns regarding the Messmer holding. Relying on Robin W. Spivey, 48 Van Natta 2363 (November 26, 1996), the Board determined that in the event a closure order subsequently awarded permanent disability for the unaccepted conditions, the carrier would not be precluded from contesting whether the conditions were "due to" the compensable injury.
SUBJECT WORKER ("126(1)"):
TEMPORARY WORKPLACE -
INTERSTATE AGREEMENT
In Rodney W. Carothers, 48 Van Natta 2372 (November 29, 1996), the Board held that, based on an interstate agreement between Oregon and Washington, claimant was not working for an Oregon employer at a "temporary [out-of-state] workplace" under ORS 656.126(5) and (7) when injured in Washington, and, as such, was not an Oregon subject worker. Claimant's Oregon employer assigned him to work at a Washington job site for some three months. Since the assignment exceeded 30 days, claimant's employer obtained Washington coverage for claimant and his coworkers. See ORS 656.126(7) ("temporary workplace" does not include a work site where an employer does work for more than 30 days in a calendar year). Some 3 months after his assignment, claimant sustained a work-related injury. His Washington claim was accepted, while his Oregon claim was denied.
Contending that he was an Oregon employee temporarily absent from the state when he suffered his injury, claimant argued that he had established a compensable Oregon claim under the "permanent employment relation" test. See Northwest Greentree, Inc. v. Cervantes-Ochoa, 113 Or App 186 (1992). The Board agreed that, if claimant's claim was subject to the "permanent employment relation" test, his Oregon claim was compensable. However, in light of the Washington - Oregon interstate agreement under ORS 656.126(5) (which provides that Oregon workers' compensation coverage will be extended to Oregon workers injured in a Washington "temporary workplace" which does not include a specific location where the employer's work is performed for more than 30 days in a calendar year), the Board concluded that claimant was not employed at a temporary Washington workplace and, thus, was not entitled to Oregon workers' compensation coverage.
In reaching its conclusion, the Board emphasized that the "permanent employment relation" test remained applicable to "non-interstate agreement" cases. However, in cases which were subject to an interstate agreement executed in compliance with ORS 656.126(5), the Board determined that such an agreement "superseded" the "permanent employment relation" test. The Board reasoned that such an interpretation provided stability and predictability for Oregon employers who performed work in Washington in that such employers would know with certainty when Washington coverage would be needed; i.e., when performing work in Washington for more than 30 days within a calendar year.
Chair Hall dissented. Arguing that the interstate agreement did not answer the question of whether claimant was an Oregon subject worker, Hall asserted that claimant's Oregon claim was compensable under the "permanent employment relation" test. Finding the interstate agreement to be ambiguous, confusing, and contradictory, Hall noted that one stated purpose of the agreement was to provide an injured worker with an exclusive remedy in the employer's home state if the employer has a "temporary workplace." Reasoning that the agreement does not define the exclusive remedy if the place of injury is not a "temporary workplace," Hall contended that the "permanent employment relation" test must be applied to make that determination. Finding no support in case law or the interstate agreement for the majority's conclusion that the agreement "superseded" the "permanent employment relation" test, Chair Hall argued that claimant was an Oregon subject worker.
SUBJECT WORKER:
VOLUNTEER COACH -
"031" COVERAGE
In John S. Dahl, 48 Van Natta 2553 (December 24, 1996), the Board held that a knee injury sustained by the father of a sixth grade basketball player during the team's practice was compensable under ORS 656.031 because the father was a subject volunteer coach at the time of the injury. Noting that claimant was not a volunteer coach officially "designated" on the school's list of selected coaches, the carrier contended that he did not qualify as a volunteer coach under ORS 656.031.
The Board disagreed with the carrier's contention. Reasoning that the statute contemplates coverages of classes or groups according to their work descriptions, the Board was not persuaded that the carrier limited its election of coverage under ORS 656.031 for volunteer coaches to only designated individuals.
In a similar vein, the Board found no support in the statute for the carrier's assertion that claimant must be formally selected to serve as a volunteer coach to satisfy the statute. Instead, the Board identified the dispositive issue as whether claimant was injured while performing duties arising out of and in the course of employment as a volunteer coach. Finding that the school had actual knowledge of claimant's service as a volunteer coach and had acquiesced in such activities by permitting him access to the school's premises and equipment, the Board determined that there was an implied contract and a right of control sufficient to establish an employment relationship. Finally, since claimant's injury occurred while demonstrating a jump shot during the grade school team's practice, the Board concluded that the injury arose out and in the course of his employment as a volunteer coach, and, as such, satisfied the requirements of ORS 656.031.
THIRD PARTY SETTLEMENT:
NO "PAYING AGENCY" APPROVAL AGREEMENT VOID
In Karl A. McDade, 48 Van Natta 2564 (December 24, 1996), the Board held that it was authorized to declare a third party settlement void under ORS 656.587 because the compromise had not received paying agency approval. After sustaining a compensable injury resulting from a motor vehicle collision, claimant pursued a cause of action against the driver of the other vehicle. The action was eventually settled without the paying agency's approval. When the paying agency learned of the settlement, it petitioned the Board to declare the settlement void.
Citing Catherine M. Knapp, 36 Van Natta 1630 (1984), the Board acknowledged that it had previously ruled that a "non-approving" paying agency's remedy would rest with the civil courts to seek enforcement of its lien. However, the Board noted that, subsequent to Knapp, the Supreme Court had indicated that the Board was authorized to determine whether settlements were void for lack of paying agency or Board approval under ORS 656.587. See Weems v. American International Adjustment Company, 319 Or 140 (1994); Toole v. EBI Companies, 314 Or 102 (1992). In light of the Toole and Weems rationale, the Board concluded that it retained jurisdiction to declare a third party settlement void under ORS 656.587 where the compromise was made without paying agency or Board approval.
Turning to the case at hand, the Board found that, since claimant had elected to proceed directly against a third party for damages arising out of his compensable injury, the third party statutes became applicable. Furthermore, because the carrier had provided benefits resulting from the injury, the Board determined that the carrier was a "paying agency" and, as such, was allowed the opportunity to object to the settlement. Inasmuch as claimant's third party settlement had been reached without the paying agency's approval, the Board set aside the settlement as void under ORS 656.587.
TTD:
"262(4)(f)" LIMIT ON "RETRO" TIME LOSS -
NOT APPLICABLE TO SUBSTANTIVE TTD
In Kenneth P. Bundy, 48 Van Natta 2501 (December 19, 1996), the Board held that ORS 656.262(4)(f), which provides that an attending physician's "time loss" authorization shall not be effective to retroactively authorize the payment of temporary disability more than 14 days prior to its issuance, does not apply to the determination of a claimant's substantive entitlement to temporary disability. In so holding, the Board concluded that the statutory limitation on retroactive "time loss" authorization applies only to "procedural" (or pre-closure) temporary disability.
Reasoning that the function of ORS 656.268 is to provide for the orderly processing of claims, i.e., the carrier's procedural obligations, the Board reiterated its holding in Ivan E. Dame, 48 Van Natta 1228 (1996), that the addition of ORS 656.268(3)(d) (which refers to ORS 656.262(4)) by the 1995 legislature did not eliminate the distinction between procedural and substantive entitlement to temporary disability. The Board interpreted the addition of ORS 656.268(3)(d), which addresses the payment of temporary disability "pursuant to ORS 656.268," as providing merely another avenue for terminating "procedural" temporary disability in an open claim, and found no indication that the legislature intended to eliminate the distinction between "procedural" and "substantive" temporary disability. In other words, the Board concluded that ORS 656.268(3)(d)'s reference to ORS 656.262(4)(f) is simply an additional requirement regarding the authorization of "procedural" temporary disability in an open claim.
The Board reasoned that the terms of ORS 656.262(4)(f) are in the present tense and thus address the contemporaneous payment of "procedural" temporary disability, not substantive entitlement after claim closure. In addition, citing 656.210 and 656.212, the Board found that a claimant's substantive entitlement to temporary disability is proven by a preponderance of the evidence showing that the claimant was disabled due to the compensable injury before becoming medically stationary. Because ORS 656.210 and 656.212 were not materially amended by the legislature, the Board concluded that the 1995 amendments did not affect the principle that a worker is substantively entitled to temporary disability for those periods during which he is able to prove that he was unable to work as a result of his injury and that substantive entitlement to such benefits is not contingent upon authorization of time loss by the attending physician.
In response to the dissent's reliance on legislative history, the Board cautioned against leaping into legislative history without first examining the statutory text and context. The Board concluded that, when the text of ORS 656.262(4)(f) is viewed in its proper context, it does nothing more than make "procedural" temporary disability contingent on time loss authorization.
Finally, the Board noted the court's statement in SAIF v. Christensen, 130 Or App 346, 350 (1990) that an attending physician's time loss authorization applies to substantive and procedural entitlement to temporary disability. However, reasoning that the statement was unnecessary to the Christensen decision, which addressed solely the issue of "procedural" temporary disability in an aggravation claim, and that it was contrary to the court's holding in SAIF v. Taylor, 126 Or App 658 (1994), the Board viewed the statement as dicta and not controlling.
Member Moller dissented, concluding that the 1995 legislature intended to eliminate the distinction between procedural and substantive entitlement to temporary disability, by promulgating ORS 656.262(4)(f) and 656.268(3). Citing ORS 656.268(3)(d), which now permits cessation of temporary disability based upon the occurrence of events in ORS 656.262(4)(f), and the offset provisions of ORS 656.268(13), which addresses necessary adjustments in compensation in arriving at a final substantive award, Moller concluded that the text of the amended statutes now requires attending physician authorization to establish entitlement to temporary disability, and disallows any compensation "not payable" for lack of attending physician authorization.
Based on the context of ORS 656.262(4)(f), specifically ORS 656.262(4)(a), (4)(c), (4)(f) and (4)(e), Moller found that the legislature deemed it essential that the worker be seen on a regular basis by the attending physician and that the attending physician be the person statutorily authorized to decide whether the injured worker is unable to work and should be taken off work. Moller found further support for his conclusion in SAIF v. Christensen, supra, and, noting that Christensen was authored by the same judge who authored the decision in SAIF v. Taylor, supra, disagreed with the majority's view of the statement in Christensen as dicta. Moller also found that Taylor was distinguishable because the court addressed former ORS 656.262(4)(b) and did not make any reference to ORS 656.268.
Furthermore, while recognizing the legislature's use of the present tense in the text of ORS 656.262(4)(f), Moller noted that it is only through the reference to ORS 656.268 that ORS 656.262(4)(f) is applicable to substantive entitlement to temporary disability. Finally, Moller quoted from legislative history indicating that the 1995 amendments to ORS 656.268 were intended to eliminate the procedural-substantive distinction for temporary disability.
TTD:
MODIFIED JOB TERMINATED -
UNPAID UNION DUES -
NOT A "WITHDRAWAL" OF JOB OFFER
In Michael D. Wingo, 48 Van Natta 2477 (December 17, 1996), the Board held that claimant was not entitled to temporary total disability (TTD) when, after returning to modified work following a compensable injury at his regular wage, he was terminated at his union's request for a failure to pay his union dues. Contending that he had satisfied his union obligation prior to his employer's termination, claimant argued that his modified job had been effectively withdrawn, thereby entitling him to TTD.
The Board disagreed, reasoning that claimant had left work for reasons unrelated to his compensable injury; i.e., his failure to pay his union dues, which under the union contract, required his employer to terminate him on receipt of the union's written request for such termination. The Board cited Teresa L. Rodriguez, 46 Van Natta 2183 (1994), where a claimant was not entitled to TTD because she had been terminated for failing to join a union as required by her employer's labor contract.
Finally, since claimant had been fired in accordance with his employer's labor agreement with his union, the Board also concluded that claimant had been terminated for violation of a normal employment standard. See OAR 436-60-030(11)(b). In reaching this conclusion, the Board recognized that claimant might well have a cause of action stemming from the manner in which he had been terminated. Nevertheless, reasoning that its review was confined to whether claimant was entitled to TTD, the Board determined that it was not the appropriate forum to consider claimant's job termination.
Chair Hall dissented. Noting that claimant's obligation had been satisfied by the time he was terminated and that he had remained temporarily disabled, Hall argued that claimant was entitled to TTD. Reasoning that claimant had been separated from his employment through no fault of his own, Chair Hall contended that the employer's erroneous termination constituted a withdrawal of the modified work offer.
COURSE & SCOPE:
INJURY HELPING POTENTIAL PATRON
SAIF v. Burke, 145 Or App 427 (December 24, 1996). The court affirmed the Board's order in James L. Burke, 47 Van Natta 2340 (1995), previously noted 14 NCN 6:9, that had held that claimant's injury, which occurred while attempting to prevent a possible patron of his employer from falling outside his employer's building, arose out of his employment as a stage manager for the Oregon Shakespeare Festival. Noting that the carrier conceded that claimant's injury occurred in the course of his employment, the court expressed no opinion concerning the Board's reliance on the so-called "rescue doctrine." Instead, the court focussed its attention on whether claimant had satisfied the "arising out of" prong of the unitary work-connection test; i.e., whether the relationship between the injury and the employment was sufficient that the injury should be compensable. See Norpac Foods, Inc. v. Gilmore, 318 Or 363, 366 (1994); SAIF v. Marin, 139 Or App 518, 522, rev den 323 Or 535 (1996).
Turning to the Board's findings, the court noted that: (1) it was undisputed that claimant's job required him to be outside of his employer's building several times a day; (2) claimant's job description required him to "make quick decisions under pressure"; (3) the employer's mission statement required employees to provide patrons with "the highest level of service possible"; and (4) claimant, who assisted patrons in the past, believed that the falling man was a patron. In light of such circumstances, the court concluded that the totality of those events gave rise to claimant's injury and that the injury was causally related to his employment.
COURSE & SCOPE:
TRAVELING EMPLOYEE
SAIF v. Randolph, 144 Or App 495 (November 13, 1996). The court affirmed without opinion the Board's order in John G. Randolph, 48 Van Natta 162 (1996), previously noted 15 NCN 1:12, which held that claimant's injury (which resulted from a motor vehicle accident while transporting his children to school) arose out of the course and scope of his employment as an "on call" 24-hour-per-day employee.
SUBJECT EMPLOYER ("029(1)"):
NORMAL / CUSTOMARY - TRADE / BUSINESS
Claussing v. K-Mart Corporation, 144 Or App 552 (November 20, 1996). The court reversed the Board's order in Bret Claussing, 48 Van Natta 229 (1996), previously noted 15 NCN 1:21, which held that a carrier was not responsible under ORS 656.029(1) for claimant's injury claim. Claimant, a worker for an employer who had contracted with a retail department store to provide janitorial services, was injured while cleaning a store. Finding that providing janitorial services was not a "normal and customary part or process of the [store's] trade or business," the Board concluded that the carrier was not responsible for claimant's injury under ORS 656.029(1).
The court noted that the Board had not considered OAR 436-050-0040(4)(c), which interprets the phrase "normal and customary part or process of the person's trade or business" to mean "the day-to-day activities or operations which are necessary to successfully carry out the business or trade." Reasoning that properly promulgated administrative rules have the force of law, the court remanded for reconsideration. See Bronson v. Moonen, 270 Or 469, 476 (1974).
AGGRAVATION ("273(1)"):
"ACTUAL WORSENING" -
INCREASED SYMPTOMS INSUFFICIENT -
PATHOLOGICAL WORSENING REQUIRED
SAIF v. Walker, 145 Or App 294 (December 24, 1996). The court, in banc, reversed a Board order that, in setting aside a carrier's aggravation denial, held that a symptomatic worsening of an accepted condition was sufficient to establish a compensable aggravation under ORS 656.273(1). Following closure of his accepted low back injury claim (which resulted in a 16 percent unscheduled permanent disability award), claimant sought additional medical treatment for increased symptoms. The carrier denied claimant's aggravation claim, contending that there had not been an "actual worsening" of his accepted condition. Reasoning that claimant's symptomatic worsening was greater than anticipated by his prior permanent disability award, the Board concluded that claimant had established an "actual worsening" as required by ORS 656.273(1).
The court identified the pivotal question as what did the 1995 legislature intend by adding the words "of an actual worsening of the compensable condition" to ORS 656.273(1). After examining the text and context of the amended statute, the court determined that the statute was sufficiently ambiguous to necessitate a review of the legislative history to discern the legislature's intent. Based on comments from Representative Mannix and Jerry Keene (a workers' compensation defense attorney), the court concluded that the legislative history supported a conclusion that the legislature intended to change the standard for proving an aggravation to require a showing that the underlying condition has worsened.
Determining that the term "actual worsening" was not intended to include a symptomatic worsening, the court reasoned that a medical expert must conclude that the symptoms have increased to the point that it can be said that the condition has worsened. Explaining that amended ORS 656.273(1) requires that there be direct medical evidence that a condition has worsened, the court held that proof of a pathological worsening is required. Inasmuch as the Board's decision had been based on evidence of increased symptoms, the court remanded for reconsideration.
Judge Armstrong, joined by Judge Landau, dissented. In light of ORS 656.214 (which states that "[a]ll permanent disability contemplates future waxing and waning of symptoms of the condition") and 656.273(8) (which provides that an aggravation can be established by showing that "the worsening [of the condition] is more than waxing and waning of symptoms of the condition contemplated by the previous permanent disability award"), Armstrong contended that the only plausible construction of ORS 656.273(1) which could be gleaned from the text and context of the statute is that an actual worsening can be shown through a significant worsening of symptoms.
Lacking an ambiguity, Judge Armstrong argued that the legislative history could not be considered. In any event, Armstrong interpreted much of that history as completely consistent with the Board's interpretation of the statute; i.e., the symptoms of a permanent condition are expected to wax and wane, so a compensable aggravation of the condition requires a showing that the condition is worse than it was at the last arrangement, taking into account the expected waxing and waning of symptoms.
ATTORNEY FEE ("382(2)"):
STIP WITHDRAWS CLAIM OBJECTION
Deaton v. Hunt-Eder, 145 Or App 110 (December 4, 1996). The court reversed the Board's order in Karen K. Deaton, 48 Van Natta 44 (1996), which held that claimant was not entitled to a carrier-paid attorney fee award under ORS 656.382(2) when, prior to conclusion of a hearing and issuance of an ALJ's order, a noncomplying employer entered into a stipulation in which it withdrew its objection to the SAIF Corporation's acceptance of claimant's injury claim. Reasoning that the stipulation did not address the merits of the case, the court concluded that claimant had not satisfied the statutory prerequisite of ORS 656.382(2).
The court identified the determinative question as whether the stipulation affirming SAIF's acceptance was the equivalent of a finding on the merits that claimant's compensation should not be disallowed or reduced. See ORS 656.382(2); Strazi v. SAIF, 109 Or App 105, 107-108 (1991). Relying on ORS 656.289(1) and former OAR 438-09-005(4), the court reasoned that, because the stipulation "determines the matter" involving the claim (settle all issues raised or raisable, including compensability and responsibility), the agreement was the equivalent of an ALJ order which would have issued at the conclusion of the hearing and, as such, was a decision on the merits. Consequently, the court held that the requisite finding for purposes of ORS 656.382(2) had been satisfied.
Judge Landau dissented, contending that the stipulation did not constitute a "finding" that claimant's compensation should not be disallowed or reduced. Reasoning that the employer had voluntarily withdrawn its hearing request and that the ALJ had not been required to decide whether its position was well taken, Landau argued that there had been no requisite "finding" on the merits and, therefore, claimant was not entitled to an attorney fee award under ORS 656.382(2). Judge Landau reasoned that it simply did not follow that, merely because a stipulation terminates a controversy and results in a compensation award, the stipulation also constitutes a "finding" on the merits as to any issue.
CLAIM PRECLUSION:
FAILURE TO CONTEST FINAL "NONCOMP" PPD AWARD
Scott v. United Parcel Service, Inc., 144 Or App 494 (November 13, 1996). The court, per curiam, reversed the Board's order in Paige Scott, 48 Van Natta 856 (1996), which held that a carrier's denial was not precluded by its failure to appeal a prior permanent disability award that had been based on a noncompensable condition. Citing Deluxe Cabinet Works v. Messmer, 140 Or App 548, rev den 324 Or 305 (1996), the court remanded for reconsideration.
CLAIM PRECLUSION:
PRIOR STIPULATION -
EFFECT DEPENDS ON PARTIES' INTENT
Pollock v. Tri-Met, Inc., 144 Or App 431 (November 13, 1996). The court reversed the Board's order in Vicki D. Pollock, 48 Van Natta 463 (1996), which had held that a prior stipulation precluded claimant from bringing an aggravation claim. Pending a hearing regarding a carrier's denial of claimant's initial injury claim, the parties orally agreed that the carrier would rescind its denial and accept the claim. Before the written stipulation received ALJ approval, claimant's attending physician found that claimant's condition had worsened and that she was unable to work. Noting that the approved stipulation contained a provision settling all issues that had been or could be raised, the Board determined that claimant was barred from litigating her aggravation claim.
The court disagreed with the Board's analysis. Reasoning that settlement agreements are contracts which implicate general principles of contract law, the court concluded that the Board had not undertaken to ascertain the parties' intent at the time of their settlement. The court cited Timberline Equip. v. St. Paul Fire and Mar. Ins., 281 Or 639, 643 (1978), Good Samaritan Hospital v. Stoddard, 126 Or App 69, rev den 319 Or 572 (1994), and International Paper Co. v. Pearson, 106 Or App 121, 124 (1991).
In particular, the court noted that the existence of the aggravation claim was unknown to claimant at the time of the parties' oral agreement and there was no evidence that the carrier had notice of the aggravation claim before ALJ approval of the written settlement. Concluding that the Board must construe the parties' settlement in such a way as to carry into effect their express purpose and intent at the time of the agreement, the court remanded for reconsideration.
CLAIM PROCESSING:
ERRONEOUS "RECON" AWARD -
IF NO SUBSTANTIVE ENTITLEMENT -
BOARD W/O AUTHORITY TO AWARD OVERPAYMENT
Vega v. Express Services, 144 Or App 602 (November 27, 1996). The court affirmed that portion of the Board's order in Eliecer Vega, 46 Van Natta 2173 (1994), which held that a carrier was not obligated to pay a specific amount of compensation awarded by an erroneous Order on Reconsideration. In increasing claimant's scheduled permanent disability award for a right knee condition from 7 percent to 14 percent, a reconsideration order erroneously directed the carrier to pay claimant an amount of compensation equal to the 14 percent total award in addition to the previously paid 7 percent award. The same day claimant requested a hearing concerning the reconsideration order, the carrier contacted the department staff and was advised that the error would be corrected. Thereafter, the department issued an amended order correcting the error.
Relying on OAR 436-30-008(1), the Board determined that the department was without authority to issue the amended order because of claimant's hearing request. Nevertheless, finding that claimant was substantively entitled only to a total award of 14 percent scheduled permanent disability for his right knee condition, the Board corrected the reconsideration order and concluded that the carrier was not obligated to pay the erroneous amount of compensation awarded by the reconsideration order pending claimant's hearing request. Finally, reasoning that the carrier's failure to pay the erroneous award had been unreasonable, the Board imposed a penalty based on the unpaid amount.
Asserting that the carrier's unilateral decision to not comply with the reconsideration order was unauthorized, claimant contended that the erroneous amount from a valid order must be paid. The court disagreed. Relying on Lebanon Plywood v. Seiber, 113 Or App 651 (1992), the court concluded that the Board correctly ruled that it was without authority to order the carrier to pay the additional amount which would clearly create an overpayment of compensation since claimant was not substantively entitled to the additional compensation pending his appeal from the reconsideration order. In doing so, the court distinguished Anodizing, Inc. v. Heath, 129 Or App 352 (1994), which had held that, although a carrier had ultimately prevailed on its appeal of a claimant's award, the carrier was obligated to pay the award because the claimant was substantively entitled to the disputed benefits pursuant to ORS 656.313 regardless of the eventual outcome of the carrier's appeal.
Finally, the court reversed that portion of the Board's order which had imposed a penalty for the carrier's failure to pay the additional benefits pursuant to the reconsideration order. Reasoning that the evidence in the record did not support the Board's apparent assumption that the carrier knew that claimant's hearing request preceded its own request for correction of the erroneous order (much less that the carrier knew that claimant had sought a hearing at all), the court determined that the evidence established that the carrier had a legitimate doubt concerning its obligation to pay the full amount awarded by the reconsideration order.
EXTENT:
IMPAIRMENT FINDINGS -
"PRE-MS" EVIDENCE MAY BE CONSIDERED
Liberty Mutual Insurance v. Englestadter, 145 Or App 330 (December 24, 1996). The court affirmed the Board's order in William R. Englestadter, 47 Van Natta 1602 (1995), on recon 48 Van Natta 15 (1996), that, in determining the extent of claimant's permanent disability, had relied on an attending physician's impairment findings which had been rendered before claimant's "medically stationary" date. Noting that impairment is rated after a claimant's condition becomes medically stationary as required by ORS 656.268(2), (4)(a), and (b), the carrier contended that "pre-medically stationary" medical evidence may not be considered.
The court disagreed with the carrier's contention. Finding no legal prohibition to considering pre-closure or pre-medically stationary evidence, the court reasoned that such evidence could be considered for the purpose of determining the extent of a claimant's permanent disability provided that the evidence bears on the claimant's condition on the medically stationary date. Noting that the record supported the Board's finding that claimant's condition had not improved between the attending physician's "pre-medically stationary" report and claimant's "medically stationary" date, the court concluded that it was appropriate for the Board to have considered the attending physician's opinion as one factor in determining the level of claimant's permanent disability.
EXTENT: VISION LOSS -
MONOCULAR IMPAIRMENT -
DOUBLE VISION
Gordon v. City of Portland, 144 Or App 471 (November 13, 1996). The court affirmed the Board's order in Jean M. Gordon, 47 Van Natta 1979, on recon 47 Van Natta 2102 (1995), that awarded claimant 100 scheduled permanent disability for vision loss for one eye (monocular vision), rather than vision loss for both eyes (binocular vision). Claimant, who had suffered from "double vision" (binocular diplopia) since childhood, suffered a compensable head injury. After temporarily losing vision in her left eye, her binocular diplopia returned. Relying on ORS 656.214(2) and OAR 436-35-260, the Board concluded that claimant was entitled to 100 percent vision loss for one eye.
Noting that her impairment resulted in binocular diplopia, claimant argued that her disability must be attributed to each eye. The court disagreed. Based on the text and context of the administrative rule, the court determined that ocular motility impairment resulting in binocular diplopia is to be considered as yielding an impairment of one eye, not both. The court further noted that the statute, which is phrased in much less precise terms, did not address the unique circumstances where the worker's vision is only impaired when both eyes are open. Reasoning that nothing in the statute precluded the Board's determination that, under OAR 436-35-260, claimant's impairment should be attributed to one eye, the court held that the Board had correctly evaluated his permanent disability.
OFFSET:
PRECLUDED BY UNAPPEALED "NOC" -
ATTY FEE - DEFENSE TO OFFSET REQUEST
Bowman v. Esam, Inc., 145 Or App 46 (December 4, 1996). The court reversed that portion of the Board's order in James C. Bowman, 48 Van Natta 411 (1996), which held that claimant was not entitled to a carrier-paid attorney fee under ORS 656.382(2) for claimant's counsel's successful defense at hearing regarding a carrier's contention that it had overpaid temporary disability (TTD) and should receive authorization to offset that alleged overpayment against claimant's future awards. After discovering that it had erroneously calculated the rate of claimant's TTD, a carrier issued a Notice of Closure (NOC) awarding TTD at the erroneous rate for a period prior to its discovery and at the corrected rate for a period after its discovery. The NOC, which was not appealed, further stated that "deduction of overpaid benefits, if any, from unpaid permanent disability is approved." At a subsequent hearing, the carrier sought a determination that it was entitled to a future offset for its overpaid TTD.
The court affirmed that portion of the Board's order which had held that the carrier was precluded from seeking the offset because the NOC had become final. Reasoning that the unappealed NOC award established claimant's entitlement to the TTD benefits (erroneous though they might have been), the court concluded that the final NOC was not subject to challenge. The court cited Hammon Stage Line v. Stinson, 123 Or App 418, 423 (1993).
The court also rejected the carrier's contention that its notation on the NOC reserved its right to recover its alleged overpayment. Noting that the NOC did not show an overpayment, the court reasoned that the most the notation reserved was the right to an offset for any future overpayment.
Turning to the Board's refusal to award a carrier-paid attorney fee, the court concluded that the effect of the carrier's attempt to include an overpayment in claimant's TTD award would have been a reduction in his award. Therefore, the court determined that claimant was entitled to an attorney fee award under ORS 656.382(2). In reaching its conclusion, the court distinguished Strazi v. SAIF, 109 Or App 105 (1991), where the carrier's offset request (which was unsuccessful when claimant obtained reinstatement of a permanent disability award that had been reduced by an Order on Reconsideration) would not have resulted in a reduction of the claimant's award.
RESPONSIBILITY ("308(1)"):
"NEW COMPENSABLE INJURY" -
MAJOR (PRIMARY) CAUSE -
NOT JUST PRECIPITATING CAUSE
SAIF v. Britton, 145 Or App 288 (December 24, 1996). The court reversed the Board's order in Gary G. Britton, 48 Van Natta 459, on recon 48 Van Natta 601 (1996), which had found a "new injury" carrier responsible for claimant's left carpal tunnel syndrome (CTS) condition. Citing ORS 656.308(1) and SAIF v. Drews, 318 Or 1, 9 (1993), the court identified the pertinent question as was whether claimant's forearm injury while working for the "new injury" carrier constituted the major contributing cause of his current need for treatment for his left CTS.
Relying on Dietz v. Ramuda, 130 Or 397, 401 (1994), rev den 321 Or 416 (1995), the court reiterated that the focus of the pertinent inquiry is a determination of the primary cause of claimant's need for treatment which requires a comparison of the relative contribution to claimant's need for treatment between his preexisting left CTS (from his first claim) and the injury sustained while working for the second employer. Although the Board had found that the second injury pathologically worsened claimant's left CTS condition, the court noted that the Board had neglected to engage in the comparative analysis contemplated by the statute; i.e., the Board had failed to determine whether, when compared with his injury while working for the second employer, claimant's preexisting left CTS contributed to his current need for treatment. Reasoning that, under ORS 656.005(7)(a)(B), the quantitative contribution of each cause, including the precipitating cause, must be weighed to establish the primary cause of claimant's need for treatment, the court remanded for reconsideration.
MEMBER CHRISTIAN - RESIGNATION
G. Marie Christian, the Board's public member for the past two years, has resigned her position. Member Christian's resignation became effective January 1, 1997.
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