WKMBCLAW.COM Presents: Bradley G. Garber’s Board Case Update for September 12, 2017

Dr. Garber’s

DISPENSARY OF COUGH SYRUP, BUFFALO LOTION,
PLEASANT PELLETS, PURGATIVE PECTORAL, SALVE
& WORKERS’ COMPENSATION CASES
by Brad G. Garber
Wallace, Klor, Mann, Capener & Bishop

September 12, 2017 

And in the “Unbelievable” category:

Joseph J. Turney, 69 Van Natta 1277 (2017)
(ALJ Wren)

Claimant sustained an inguinal hernia while using the bathroom, at home, before going to work.  Remarkably, he filed a workers’ compensation claim, alleging that his claim was compensable under the “personal comfort” doctrine.  Not surprisingly, SAIF denied compensability of the claim, alleging that claimant’s injury did not arise out of and in the course of employment.  Judge Wren agreed and upheld the denial.  Claimant appealed the Order to the Board.

Claimant apparently relied upon the Court of Appeals decision, in U.S. Bank v. Pohrman, 272 Or App 31 (2015), in asserting that his claim was compensable under the “personal comfort” doctrine.  The Court, in that case held that a “proper application of the course and scope inquiry requires an antecedent consideration of the personal comfort doctrine[.]” The Board, however, noted, “The cases applying the ‘personal comfort’ doctrine involved situations where a worker had already begun employment and was injured while on a break during the work day.”  In this case, claimant had not even showed up for work, yet!  Affirmed 

Keith J. Wiggins, 69 Van Natta 1310 (2017)
(ALJ Brown) 

Claimant appealed an Opinion & Order that: (1) found that a Notice of Closure, which did not include a “chronic condition” award was not unreasonable; and (2) did not award penalties and fees for SAIF allegedly unreasonable claim processing.

Claimant had a knee injury.  The claim was accepted and closed.  Then, claimant requested the acceptance of a new condition, patellofemoral chondromalacia.  SAIF accepted it and re-opened the claim.

In December 2015, SAIF wrote to claimant’s attending physician and surgeon, Dr. Greenleaf, requesting information in anticipation of claim closure.  SAIF asked Dr. Greenleaf, “Which of the following best describes the patient’s ability to repetitively use the injured knee due to the accepted conditions of right knee sprain and right knee patellofemoral chondromalacia?”  SAIF offered Dr. Greenleaf the following three “check box” options: “No limitation,” “Some limitation,” and “Significant limitation (more than 2/3 of the time).”  Dr. Greenleaf checked the “Some limitation” box.  After receiving that information, SAIF closed the claim, without a “chronic condition” award.

In March, claimant’s attorney requested reconsideration of the Notice of Closure.  After that, he sent Dr. Greenleaf a letter that provided a different definition of “significant limitation.”  Dr. Greenleaf signed off on a report, in which he opined that claimant would not be able to repetitively walk on uneven ground, twist, turn, or rotate the knee, use stairs, squat, kneel, run or jog for more than two-thirds of an eight-hour day.  Because of this evidence, generated after claim closure, the Appellate Review Unit gave claimant a “chronic condition” award.

In June 2016, claimant requested a hearing, seeking penalties and fees for unreasonable claim processing.  Claimant contended that SAIF used an inaccurate “gradation scale” that did not accurately reflect the standard measure of entitlement to a “chronic condition” award.

In a December 22, 2014 “Industry Notice,” the Workers’ Compensation Division of the Department of Consumer and Business Services defined “significant” as “having or expressing a meaning” effect.  In that notice, the WCD stated that it “interprets the relevant inquiry under OAR 436-035-0019(1) as follows: Because of a permanent and chronic condition caused by the compensable injury, is the worker unable to repetitively use the body part for more than two-thirds of a period of time?”  (What period of time?  A minute? And hour?  8 hours?  24 hours?)

In Angelina M. Spurger, 67 Van Natta 1798 (2015)(on remand), the Board concluded that “the plain and ordinary meaning of ‘significantly limited’ denotes a limitation that is “meaningful or important.”  (There, now…doesn’t that help?)

Because SAIF’s inquiry to Dr. Greenleaf mentioned “2/3 of the time,” the Board decided that SAIF’s inquiry addressed the standard set forth in OAR 436-035-0019(1).  Because of this, the Notice of Closure was not unreasonable.  Furthermore, the change in impairment came about as a result of evidence generated after claim closure.  The Board observed, “Given that claimant’s entitlement to the ‘chronic condition’ award was established be a ‘post-closure’ report obtained from Dr. Greenleaf, we conclude that the Notice of Closure was not unreasonable. See Scot T. Campbell, 61 Van Natta 1818, 1832 (2009)(declining to award an ORS 656.268 penalty where the increased compensation resulted from findings in a ‘post-closure’ medical report that the carrier could not reasonably have known at the time of claim closure); Tyrel Albert, 66 Van Natta 1212, 1219 (2014).” Affirmed 

And from the Court of Appeals:

Greenblatt v. Symantec Corporation, 1305365; A158080 (August 30, 2017) 

In this Court of Appeals case, claimant appealed a Board Order that upheld the employer’s denial of the compensability of his right knee injury that occurred as he jumped up to slap the backboard of a basketball hoop in the employer’s courtyard.  The Board concluded that claimant’s injury occurred while he was engaged in a recreational activity primarily for his own personal pleasure.

ORS 656.005(7)(a) provides that a compensable injury is one that arises out of and in the course of employment.  But, ORS 656.005(7)(b)(B) excludes from the definition of “compensable injury” any injury “incurred while engaging in or performing, or as a result of engaging in or performing, any recreational or social activities primarily for the worker’s personal pleasure.”

Claimant works as a technical support engineer.  He mainly sits at a desk and communicates with customers by phone or over the internet.  He is salaried and is allowed and encouraged to take paid breaks.

Employer owns and maintains a fenced courtyard adjacent to its building for employees to use during their breaks.  The courtyard includes a basketball court.  On the day of his injury, claimant and a coworker played basketball during a break.  As he was leaving the court, claimant jumped up to slap the backboard and injured his right knee.

Claimant sought medical treatment and was diagnosed with a right patellar tendon rupture.  He filed a claim for benefits.  The employer denied the compensability of the claim, contending that the personal pleasure doctrine applied to exclude the injury under ORS 656.005(7)(b)(B).  Claimant requested a hearing.

During the hearing, claimant testified that he jumped up to slap the backboard because (get this) “he was pleased with his good day at work.”  The ALJ believed him and decided that the recreational activity/personal pleasure exclusion did not apply because claimant had a work-related purpose in jumping to express his happiness and excitement about his work.  The ALJ set aside the employer’s denial.  The employer appealed the decision to the Board.

The Board reversed the ALJ, finding that claimant was still engaged in a recreational activity when he jumped up to slap the backboard.  Claimant appealed the matter to the Court of Appeals.  On appeal, claimant argued that the Board’s decision was not supported by “substantial evidence” in the record.

In Roberts v. SAIF, 341 Or 48 (2006), the Supreme Court described the elements necessary to establish the applicability of ORS 656.005(7)(b)(B), as follows:

“Textually, ORS 656.005(7)(b)(B) raises three questions.  The first is whether the worker was engaged in or performing a ‘recreational or social activit[y].’  The second is whether the worker incurred the injury ‘while engaging in or performing, or as a result of engaging in or performing’ that activity.  The final question is whether the worker engaged in or performed the activity ‘primarily for the worker’s personal pleasure.”

The exclusion is an affirmative defense, and the burden of proof lies with the employer to prove all of its elements.

Claimant, first, challenged the Board’s finding that playing basketball was a recreational activity.  Claimant alleges that the finding was a “mere assumption” because it was not supported by any concession by claimant that he was engaged in a recreational activity.  The Court agreed with this allegation, but noted that claimant did not dispute the employer’s assertion, in its brief to the Board, that “[c]laimant has not contested the fact that basketball is a recreational activity.”  Claimant tacitly agreed that he was engaged in a recreational activity, however, when he alleged that all recreational activity had ended at the time of his injury.

The Court went on to agree with the Board, that claimant’s injury was incurred as a result of engaging in the recreational activity because he would not have been in the vicinity of the backboard had he not been engaged in that activity.

Finally, the Court addressed whether Claimant’s engaging in the recreational activity was primarily for his personal pleasure.  In U.S. Bank v. Pohrman, 272 Or App 31 (2015), the Court of Appeals explained, as follows:

“[T]he proper focus is not on the fact that the recreational or social activity is pleasurable but on the fact that the activity is work related.  That is, the injury is compensable if it occurred during a recreational or social activity that is incidental to an employment activity.” (emphasis original).

In this case, the Court found that playing basketball was not “incidental” to an employment activity.  Affirmed