Bradley G. Garber’s Board Case Update for 03/08/16


Bradley G. Garber’s Board Case Update: 03/08/2016

Silviu V. Moisescu, 68 Van Natta 244 (2016)

(ALJ Marshall)

Claimant requested review of an Order that declined to assess a penalty under ORS 656.268(5)(d) for an unreasonable claim closure: and did not award an attorney fee under ORS 656.382(1). SAIF contested the ALJ’s finding that its Notice of Closure was unreasonable.

On October 28, 2014, SAIF accepted claimant’s claim for the conditions of cervical strain, and lumbar strain. On January 6, 2015, Dr. Thiessen performed an examination and determined that claimant was medically stationary with no permanent impairment.

On January 22, 2015, SAIF issued a Notice of Closure that awarded temporary disability benefits, and no PPD. Claimant requested reconsideration, asserting that the claim had been prematurely closed and that he was entitled to additional temporary and permanent disability benefits, in addition to penalties under ORS 656. 268(5)(d) and fees under ORS 656.382(1).

A February 19, 2015 Order on Reconsideration rescinded the Notice of Closure for lack of sufficient impairment findings under OAR 436-030-0020(2). Claimant requested a hearing, seeking penalties and fees.

The ALJ determined that the Notice of Closure was unreasonable because there was insufficient information upon which to base claim closure. Nevertheless, because claimant had been released to regular work, the ALJ reasoned that there were no amounts “then due” on which to base an ORS 656.268(5)(d) penalty and that an ORS 656.382(1) penalty-related attorney fee award was not warranted.

The Board agreed with claimant’s attention, that a penalty and fee were warranted.

img-2The Board found that, while Dr. Thiessen declared claimant medically stationary, with no permanent impairment, there was no evidence that he was claimant’s attending physician (he was being treated, primarily, by a nurse practitioner). Because there was no evidence that an attending physician determined claimant’s permanent impairment, closure was unreasonable. The issue was whether there was an amount “then due” upon which to base a penalty. The Board explained the situation, as follows: “The relevant point in time for determining the amount “then due” is the time at which the unreasonable notice of closure was issued. Liberty Northwest Ins. Corp. v. Olvera-Chavez, 267 Or App 55, 65 (2014)(ORS 656.268(5)(d) penalty should be based on the amount of compensation due as of the date of the premature notice of closure); Walker v. Providence Health System, 254 Or App 676, 685 (2013)(the “amount due” was the amount the claimant was entitled to be paid at the time of the unreasonable premature closure); Fallis [Gary Fallis, Jr.], 66 Van Natta at 1942 (citing Walker and Olvera-Chavez in determining that the ORS 656.268(5)(d) penalty should be based on the temporary disability compensation determined to be due as of the date of the premature closure). Because the amount of compensation due claimant as of the date of the unreasonable Notice of Closure (January 22, 2015) is unknown (because the Notice of Closure was set aside), we find that the determination of the penalty amount is a matter of claim processing and will be based on the eventual calculation of claimant’s compensation at the subsequent valid claim closure. See Guy E. Bales, 64 Van Natta 231, recons, 64 Van Natta 1599 (2012), aff’d without opinion, 263 Or App 755 (2014)(rejecting a carrier’s argument that an ORS 656.268(5)(d) penalty should be rescinded because there was no compensation “then due”). We find that claimant is entitled to a penalty on those amounts then due, if any.”

The Board went on to find that SAIF’s issuance of a Notice of Closure, in the absence of sufficient closing information, constituted a “resistance” to the payment of compensation. Because of this, claimant’s attorney was entitled to an assessed fee under ORS 656.382(1). Reversed, in part, affirmed, in part

Vincent O. Robison, 68 Van Natta 255 (2016)

(ALJ Wren)

The employer requested review of an Order that found medical services compensable. The inquiry was whether claimant established a causal relationship between the work-related injury incident (compensable injury) and the disputed medical services, rather than the accepted “condition.” See SAIF v. Carlos-Macias, 262 Or App 629 (2014).

It is not clear, from the Order, exactly what condition had been accepted by the employer. It did, however, img-3deny the condition of “bronchial reactivity/occupational asthma.” Subsequently, it withdrew that denial because claimant had never filed a claim for the condition. Claimant, however, did seek treatment for the condition. Based on the opinion of claimant’s attending physician, the Board found that the disputed medical services were directed at claimant’s bronchial reactivity/occupational asthma, which was a condition materially related to his compensable injury. Affirmed

Oscar Cano-Sanchez, 68 Van Natta 303 (2016) (Second Own Motion Order on Reconsideration)

In the first reconsideration order, the issue was whether claimant’s “worsened condition” required “other curative treatment prescribed in lieu of hospitalization that is necessary to enable the injured worker to return to work.” See ORS 656.278(1)(a). That type of qualifying treatment requires that establishment of three elements: (1) curative treatment (i.e., img-4treatment that relates to or is used in the cure of diseases, tends to heal, restore to health, or to bring about recovery); (2) prescribed (directed or ordered by a doctor) in lieu of (in the place of or instead of) hospitalization; and (3) is necessary (required or essential) to enable (render able or make possible) the injured worker to return to work. Larry D. Little, 54 Van Natta 2536, 2546 (2002). In other words, the statute has been rewritten by the Board to state, as follows:

“Curative treatment is treatment that relates to or is used in the cure of diseases, tends to heal, restore to health, or to bring about recovery, directed or ordered by a doctor, in the place of or instead of hospitalization and is required or essential to render able or make possible the injured worker to return to work.” There now…isn’t that much clearer?

On reconsideration, the employer contended that claimant’s medical treatment (injections and physical therapy) was palliative care, not curative, and that it was not prescribed in lieu of hospitalization. The Board observed, as follows:

“Although Dr. Johnson, claimant’s attending physician, had previously indicated that the recommended epidural steroid injections were ‘palliative,’ based on subsequent medical records, we found that, following the February and April 2015 epidural steroid injections, claimant’s leg pain ultimately resolved, enabling him to return to work. We found that such circumstances satisfied the definition of ‘curative treatment’ in that it represents treatment that relates to ‘bringing about recovery.’”

Based on Dr. Johnson’s opinion, the Board also found that the injections and physical therapy were offered, in lieu of hospitalization. Affirmed, again

Query: What if claim reopening is denied, on the basis that the proposed ESI constitutes “palliative” care, and the ESI, in fact, is ineffective?

Paris Jennings, 68 Van Natta 322 (2016)

(ALJ Ogawa)

Claimant requested review of an Order that: (1) upheld the employer’s denial of his occupational disease claim for a right eye traumatic glaucoma condition; (2) found that the employer’s denial did not constitute an invalid “back-up” denial of a previously accepted, injury-related, right eye traumatic glaucoma condition; (3) found that the employer’s denial did not constitute a void denial of a new/omitted medical condition claim for a right eye traumatic glaucoma condition; and (4) declined to award an attorney fee.

On February 20, 2007, claimant sustained a compensable right eye injury. The claim was accepted for the conditions of traumatic retinal detachment, traumatic cataract, and traumatic glaucoma.

On September 25, 2014, Dr. Scott, claimant’s eye surgeon, submitted an 827 Form, checking the box for “request for acceptance of a new or omitted medical condition on an existing claim.” He identified the new condition as “traumatic glaucoma OD.” The form was not signed by claimant.

Mistakenly thinking that “OD” meant “occupational disease,” employer denied the claim, asserting that a “traumatic” glaucoma was not, by definition, an occupational disease condition. Afterward, Dr. Scott clarified that “OD” was a Latin term meaning “oculus dextra.

After hearing, the ALJ occupational disease noted, img-5correctly, that accepted the condition, claim. Claimant reconsideration of the asserting that employer’s absence of a valid claim signed by a physician upheld employer’s claim denial. She employer had already as part of the injury requested Opinion & Order, denial was void in the (note that an 827 Form cannot, by statute, constitute a valid new/omitted condition claim) and that he was entitled to a fee under ORS 656.386(1).

On reconsideration, the ALJ denied claimant’s counsel’s request for an attorney fee, reasoning that claimant had not prevailed against the denial and, even if claimant had not perfected a new condition claim, employer’s denial did not constitute a refusal to pay compensation for a condition it had already accepted. On review, claimant tried to argue that employer’s denial was an impermissible “back-up” denial under ORS 656.262(6)(a). The Board disagreed, however, observing that employer did not mean to deny what had already been accepted, but mistakenly interpreted what it thought was a separate claim for an occupational disease, and denied that. In the denial, employer expressly identified traumatic glaucoma as a previously-accepted condition and acknowledged its responsibility to keep paying benefits for that condition.

The Board agreed that, technically, employer’s denial was “void,” because claimant’s claim was not valid if it was interpreted to be a “new” condition claim. But, the claim could have been interpreted as a valid “initial” claim for an occupational disease. In that case, a physician’s report is enough to make the claim valid and to trigger employer’s responsibility to process the claim. Because employer’s interpretation of the 827 Form was reasonable, as well as its response, and because claimant’s attorney did not prevail against the denial, there was no basis for an attorney fee. Affirmed