WKMBCLAW.COM Presents: Bradley G. Garber’s Board Case Update for December, 18, 2017

Dr. Garber’s

by Brad G. Garber
Wallace, Klor, Mann, Capener & Bishop

December 18, 2017

Edgar Negrete, 69 Van Natta 1722 (2017)
(ALJ Naugle)

The self-insured employer appealed an Order that found that the employer had de facto denied claimant’s new/omitted medical condition claim for an “other specified congenital foot deformity” and awarded a penalty-related fee for unreasonable claim processing.

Claimant injured his right ankle on October 24, 2015.  He filed a claim which was accepted for the condition of right ankle sprain.

Claimant continued to have right ankle symptoms.  He began treating with a “Dr. Moy.”  Dr. Moy diagnosed “other specified congenital deformities of feet, Q66.89.”  He also indicated that he “suspected” an “irritated fibrous coalition of talar calcaneus middle facet.”

On February 12, 2016, claimant and Dr. Moy completed an 827 Form requesting acceptance of a new/omitted medical condition.  The space on the Form for listing the condition was left blank.  However, the Form provided an ICD-9 code of “Q66.89.”  That code (if you want to look it up) refers to “other specified congenital foot deformity.”

Dr. Weeks performed a records review on behalf of the employer, on March 17, 2016.  He agreed with Dr. Moy differential diagnosis of “fibrous coalition of the talar calcaneal middle facet.”  In his opinion, the condition was preexisting and not injury-related.

On December 19, 2016, claimant’s attorney requested acceptance of the fibrous coalition condition.  On the same day, claimant requested a hearing from a de facto denial of his February 12, 2016 new/omitted condition claim, filed by 827 Form, seeking penalties and fees.

On February 2, 2017, the employer expanded the scope of claim acceptance to include the “fibrous coalition” condition.

Finding that the 827 Form of February 12, 2016 properly initiated a new/omitted condition request that triggered the employer’s processing obligations, the ALJ concluded that the employer unreasonably failed to process the claim.  Accordingly, the ALJ awarded a penalty-related fee under ORS 656.262(11)(a) and a fee under ORS 656.386(1) based on the employer’s “pre-hearing” rescission of its de facto denial of the new/omitted condition.

On review, the employer asserted that its claim processing obligations were not triggered by the 827 Form because it did not constitute a “clear request for acceptance of a new/omitted medical condition” as required by ORS 656.267(1).  Accordingly, the employer contended that its claim processing was not unreasonable.  The employer also argued that an ORS 656.386(1) attorney fee was not statutorily warranted because the 827 Form did not request acceptance of the condition that was accepted, by Modified Notice of Acceptance, on February 2, 2017.

The Board disagreed with the employer’s first point, stating, “Although the space on the form for listing the [new/omitted] condition was left blank, the form provided that claimant’s current diagnosis per the ICD-9 codes was “Q66.89” (i.e., “other specified congenital foot deformity”).  Under the circumstances, the Board found that claimant clearly requested formal acceptance of a new/omitted medical condition under ORS 656.267(1), which triggered the employer’s claim processing obligations.  The fact that the employer did not process a claim for a ICD-9 coded condition was found to be unreasonable.

The Board went on to find that the “condition” claimed by the 827 Form encompassed the condition that was, ultimately, accepted on February 2, 2017 and that, therefore, claimant’s counsel was entitled to a fee under ORS 656.386(1) for the employer’s pre-hearing rescission of its de facto denial.  Affirmed

MORAL: An ICD-9 coded condition, on an 827 Form, can constitute a new or omitted condition that needs to be accepted or denied. 

Gary W. Fallis, Jr., 69 Van Natta 1734 (2017)
(ALJ Jacobson)

The self-insured employer requested review of an Order that affirmed an Order on Reconsideration that set aside a Notice of Closure, as premature and awarded a penalty, under ORS 656.268(5)(f), for an alleged unreasonable claim closure.

Claimant sustained a compensable low back injury which was accepted for L3-4 and L4-5 disc herniations.  Upon claim closure, claimant was granted a 33% whole person award and a 43% work disability award.

Post-closure, the employer expanded the scope of claim acceptance to include L4 radiculopathy.

Claimant started an approved training program (ATP) in January 2014, and the program concluded on September 6, 2015.

On March 8 and 9, 2016, claimant’s attending physician opined that claimant was not medically stationary.  Claimant was, then, sent to Drs. Rosenbaum and Lawlor for an IME on April 19, 2016.  Those physicians determined that claimant’s L4 radiculopathy condition was

medically stationary, and evaluated his permanent impairment.  On December 7, 2016, claimant’s attending physician concurred with the findings made by Drs. Rosenbaum and Lawlor that: (1) claimant was significantly limited in the repetitive use of his low back; (2) his sensory findings were invalid and unrelated to his work injury; and (3) he had no strength loss due to the work injury.  He, also, agreed with range-of-motion findings.

Based on all of this information, the employer issued a Notice of Closure on December 16, 2016.  The Notice of Closure did not award additional permanent disability.  Claimant requested reconsideration.

On January 17, 2017, the Appellate Review Unit (ARU) set the Notice of Closure aside because, while the matter was on reconsideration, the attending physician opined that claimant was not, yet, medically stationary.  Employer requested a hearing.

After hearing, the ALJ affirmed the Order on Reconsideration, reasoning that the attending physician’s opinion was more persuasive than the IME physicians’ opinions regarding the medically stationary issue.  Also, the ALJ noted that the employer had not obtained a “current” (within 3 months before claim closure) determination of medically stationary status, as required by OAR 436-030-0020(14)(b), so the Notice of Closure was unreasonable.

The Board agreed with the ALJ, observing, as follows:

“Here, because claimant enrolled and actively engaged in the ATP after the first closure of his claim, OAR 436-030-0020(14)(b) required the employer to obtain a ‘determination of medically stationary status’ within three months before claim closure.  Although Drs. Rosenbaum and Lawlor opined that claimant’s condition was medically stationary, they offered those opinions on April 19, 2016, almost seven months before the December 16, 2016 claim closure.” (emphasis added).

In addition, the Board noted that the attending physician (while agreeing with much of the IME findings by Drs. Rosenbaum and Lawlor) did not expressly agree with the finding that claimant was medically stationary.  Affirmed 

NOTE:  It is not necessary, for claim closure, for the attending physician to declare the patient medically stationary.  But, under the circumstances of this case, someone had to make that determination within 3 months of the closure order. 

And from the Court of Appeals:

Mandes v. Liberty Mutual, 1304012; A158741 (December 6, 2017)

Claimant appealed an Order on Review from the Board that found her injury, sustained on public property, while on break, was non-compensable under the “going and coming” rule.

Here are the condensed facts:

“Claimant, who works for employer Liberty Mutual as a nurse case manager, used her paid 15-minute break to take a walk around the building with coworkers.  As she returned to the building, she tripped and fell on an uneven sidewalk adjacent to employer’s parking lot, sustaining multiple injuries.”

Employer denied the compensability of claimant’s injuries, reasoning that her injuries did not occur in the course and scope of her employment, under the “going and coming” rule.  That rule provides, generally, that injuries sustained while an employee is travelling to or from work do not occur in the course of employment and are not compensable.  There are exceptions to this rule, and one of them is the “parking lot” exception.  Generally, that exception makes an injury compensable if it occurs on property owned or maintained by the employer.  In this case, that exception did not apply, because the employer did not have any control over the premises where claimant was injured.

Claimant, having lost before the Hearings Division, argued to the Board that her injuries arose out of, and in the course of, her employment, under the “personal comfort” doctrine.  Under that doctrine, a worker remains in the course and scope of employment during personal comfort activities that are sanctioned by the employer and are incidental to, but not directly involved in, the performance of the appointed task.  U.S. Bank v. Pohrman, 272 Or App 31, 345 P3d 722, rev den, 358 Or 70 (2015). 

Under Pohrman, the “personal comfort” doctrine precedes any analysis under the “going and coming” rule, and attendant parking lot exception.  In other words, if the activity in which a worker is engaged when injured is not for his or her “personal comfort,” but is somehow, tangentially, hanging-by-a-thread, related to work, no one cares whether the “going and coming” rule applies.  Reversed and Remanded