Bradley G. Garber’s Board Case Update for 02/17/16

Dr. Garber’s Dispensary of Cough Syrup, Buffalo Lotion, Pleasant Pelllets, Purgative Pectoral, Salve & Workers’ Compensation Cases

By Brad G. Garber

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02/17/2016

Kenneth J. Sinor, 68 Van Natta 113 (2016)

(ALJ Lipton)

The self-insured employer requested review of an Opinion & Order that set aside its denial of claimant’s injury claim for a low back condition.

feb-17-image-2Claimant had a long history of low back problems. He injured his back in 1995, 1998, 1999, 2008, and 2013. Three of the injuries were from motor vehicle accidents. Then, in December 2013, he started working for the employer. Claimant worked a night shift. He began a shift on May 29, 2014 that ended on the morning of May 31. When he first sought treatment for low back pain, he told the doctor that he woke up with the pain on the morning of May 29, 2014 (before he went to work). When claimant decided that his low back injury occurred at work, he started telling everyone that he was injured on the evening of May 30, while trying to stop a stack of boxes from falling off a hand truck. He testified that he did not want to file a claim, because he was afraid he would lose his job. Later in his testimony, he stated that he changed his mind about filing a claim because it became clear that his injury was not simply a pulled muscle or something that might heal up in a day, or two.

In addition, the Board noted that claimant’s descriptions of his symptoms to medical providers were inconsistent with his testimony that he thought he had only pulled a muscle that would resolve with rest. On cross-examination, claimant acknowledged that he misrepresented the mechanism of injury and onset of symptoms to his medical providers. LIAR!

Under the circumstances, the Board decided to not find claimant credible.

Reversed

Maria T. Arguello, 68 Van Natta 157 (2016)

(ALJ Riechers)

Claimant requested review of an Opinion & Order that declined to award a penalty and penalty-related fee for an unreasonable refusal to close claimant’s left shoulder injury claim.

After a worker makes a written request for claim closure, the carrier must issue, within 10 days of receipt of the request, either a Notice of Closure, if the requirements for closure have been satisfied, or a Notice of Refusal to Close, if the requirements for closure have not been met. ORS 656.268(5)(b). A penalty shall be assessed against the carrier if it unreasonably closes or refuses to close a claim after such a request. ORS 656.268(5)(d).

feb-17-image-3In each case, the Board must determine, through a factual inquiry into the reasonableness of the carrier’s refusal to close the claim under the particular circumstances, whether that conduct was unreasonable and subject to a penalty pursuant to ORS 656.268(5)(d). Red Robin Int’l v. Dombrosky, 207 Or App 476 (2006). A penalty is not automatically imposed whenever the 10-day period under ORS 656.268(5)(b) is exceeded. If the carrier had a legitimate doubt as to its liability, or a legitimate doubt as to whether sufficient information was in its possession at the time of the claimant’s demand for claim closure, its actions were not unreasonable. See, Int’l Paper Co. v. Huntley, 106 Or App 107 (1991).

In this case, claimant demanded claim closure on January 20, 2015. Prior to this, on January 13, 2015, the claim examiner sent a “check-box” report to claimant’s attending physician, asking whether claimant had any lifting restrictions. Then, on February 13, 2015, the claim examiner sent  another “check-box” report to the attending physician, asking whether claimant suffered from a chronic condition that should be rated.  The doctor finally signed both reports and returned them to the claim examiner on February 23, 2015.  The claim was then closed on March 3, 2015. Under the circumstances, the Board did not feel that the carrier’s failure to close the claim within 10 days was unreasonable.

Affirmed

NOTE: Interestingly, there was no evidence that the carrier sent claimant a Notice of Refusal to Close. The Board did not find this to be unreasonable.

Margaret J. Steinkamp, 68 Van Natta 165 (2016)

(ALJ Jacobson)

Claimant appealed an Opinion & Order that upheld SAIF’s denial of her aggravation claim for a left knee condition.

feb-17-img-4Claimant’s accepted claim was for the conditions of abrasion and contusion. Claimant filed an aggravation claim and argued that her boo-boos had worsened since the last award/arrangement of compensation. (I assume that was zero). Claimant’s attorney argued that the “work-related injury incident” rationale of Brown v. SAIF, 262 Or App 640, rev allowed, 356 Or 397 (2014), should be extended to aggravation claims.

Subsequent to the ALJ’s Order and the filing of the parties’ appellate briefs, the Court of Appeals issued its decision in Nacoste v. Halton Co., 275 Or App 600 (2015), a case I successfully argued before the court. In Nacoste, the court reasoned that, by its text, ORS 656.273 applies to an “actual worsening of the compensable condition.” (emphasis added).

There was no medical evidence of claimant’s boo-boos had actually worsened, because claimant’s attending physician admitted that she was not treating claimant for an abrasion, or a contusion.

Affirmed

William Snyder, 68 Van Natta 199 (2016)

(ALJ Riechers)

Claimant appealed an Opinion & Order that affirmed an Order on Reconsideration that awarded no PPD for accepted head, neck and upper back conditions.

As a result of claimant’s June 23, 2014 injury, SAIF accepted a concussion, a cervical strain and a thoracic strain. An October 10, 2014 Notice of Closure awarded no PPD, and claimant requested reconsideration and the appointment of a medical arbiter.

The medical arbiter found some loss of ROM in claimant’s cervical and thoracic spine, but he attributed 100% of that loss to multilevel degenerative changes and, not, the accepted strains. He also opined that claimant’s complaints of headaches and “problems with math skills” were not due to his concussion. (I’ve never had a concussion and I, still, have problems with math skills). The Order on Reconsideration affirmed the Notice of Closure. Claimant requested a hearing.

Based on the medical arbiter’s report, the ALJ concluded that claimant had no permanent impairment due to the accepted conditions or and direct medical sequelae of the accepted conditions. Citing Stuart C. Yekel, 67 Van Natta 1279

(2015), the ALJ further rejected claimant’s argument that, under Brown v. SAIF, 262 Or App 640, rev allowed, 356 Or 397 (2014), the relevant inquiry concerns claimant’s permanent impairment due to the work injury, rather than to the accepted conditions.

The Board explained things, as follows:

“In Yekel, we concluded that the statutory framework, as well as the Director’s rules, requires that impairment be awarded based on the accepted conditions and their direct medical sequelae. 67 Van Natta at 1284. We also interpreted “post-Brown” case law to support this approach. Id. At 1283 (citing Jeld Wen, Inc. v. Cooper, 270 Or App 186 (2015)). Accordingly, we declined to extend the Brown holding outside its context of compensability disputes. Id. at 1284. Instead, we continued to apply an ‘accepted condition-based’ focus to the evaluation of permanent disability. Id. at 1284-85.”

Affirmed

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Cory L. Krauss, 68 Van Natta 190 (2016)

(ALJ Smith)

The self-insured employer requested review of those portions of Judge Smith’s Opinion & Order that: (1) set aside its denial of claimant’s new/omitted medical condition claim; and (2) awarded a $12,000 attorney fee.

The Board summarily affirmed the ALJ’s decision to set aside the denial; it had a problem with the attorney fee. On review, the employer argued that the ALJ’s $12,000 attorney fee award was excessive. The employer pointed out that there were no depositions, that the hearing involved the testimony of one witness, that the hearing lasted 41 minutes, and there were “relatively minimal” exhibits. (There were 41 exhibits, and the hearing transcript was 24 pages long).

The Board discussed all of the issues to be considered under OAR 438-015-0010(4) and determined that claimant’s attorney was, really, only entitled to an assessed fee of $8,000. But, because the employer had also raised an issue with regard to compensability, and the employer did not prevail, the Board handed another $4,000 back to claimant’s attorney.

Affirmed, in part, modified, in part….attorney fee, the same

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