Bradley G. Garber’s Board Case Update for 09/26/16


by Bradley G. Garber Wallace, Klor & Mann, P.C.



Board Case Update: 09/26/2016

by Brad G. Garber Wallace, Klor & Mann

Valerie M. Appelbaum, 68 Van Natta 1476 (2016)
(ALJ Naugle)

Claimant requested review of an Opinion & Order that upheld employer’s denial of her occupational disease claim for a mental disorder. In upholding the employer’s denial, the ALJ found that claimant, a pharmacist, did not establish that the employment conditions allegedly producing claimant’s mental disorder, which included inadequate training on the new pharmacy software system, did not exist in a real and objective sense. In addition, the ALJ found that the employer’s implementation of a new software system, which included training on the system, was related to employment conditions generally inherent in every working situation under ORS 656.802(3)(b).


On appeal, claimant contended that the employer’s arguments should not be considered because its denial did not expressly state that claimant’s employment conditions allegedly responsible for her mental condition did not exist in a “real and objective sense.”
There is no requirement that this language be included in a mental disorder denial.

The employer’s denial read, “It is our position your on-the-job stressors are excluded from consideration pursuant to ORS 656.802(3) and, as a result, non – excluded work exposures are not the major contributing cause of your mental disorder, to the extent that a true disorder actually exists.” The Board found this language sufficient, but also noted, “Moreover, even if the employer’s initial denial did not encompass those issues, the record establishes that the employer effectively amended its denial by raising those issues at the hearing without an objection from claimant.” The Board found the denial sufficient.

On the merits, the Board observed, as follows:

“In the context of a mental disorder claim, both those factors excluded by ORS 656.802(3)(b) and non-work- related factors must be weighed against nonexcluded work -related factors. Only if the nonexcluded work-related causes outweigh all other causes combined is the claim compensable. [Liberty Northwest Ins. Corp. v. Shotthafer, 169 Or App 556 (2000)] A medical opinion that does not factor out contributory, but statutorily excluded, factors is insufficient to establish a compensable mental disorder. Rory S. Lewno, 66 Van Natta 2075 (2014).”

After discussing the evidence presented, the Board concluded, as follows:

“ * * * [T]his record does not establish anything unreasonable or inadequate about the employer’s training process for the new pharmacy software system. Thus, we conclude that claimant was faced with a condition that is generally inherent in every work place, i.e., the implementation of a technological change with a reasonable training program. Consequently, although claimant’s participation in the software training process may have contributed to her mental disorder, we find that such an employment condition is excluded under ORS 656.802(3)(b).”

NOTE: Computers stress me out, on a daily basis.

Roy Sheppard, 68 Van Natta 1482 (2016)
(ALJ Fulsher)


Claimant requested review of an Opinion and Order that affirmed an Order on Reconsideration that awarded 3 percent whole person impairment and 15 percent work disability for his thoracic spine condition. Claimant claimed that he was entitled to a 5 percent “chronic condition” award.img-3

In analyzing the situation, the Board noted the Department’s definition of a “chronic condition,” interpreted, as follows: “ * * * [T]he relevant inquiry under OAR 436-035-0019(1) [is] 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.” This definition was included in a December 22, 2014 “Industry Notice” from WCD.

The Board observed, as follows:

“We are required to apply the Director’s standards for the evaluation of disability. ORS 656.295(5). Accordingly, in determining whether claimant is ‘significantly limited in the repetitive use’ of his thoracic spine under OAR 436-035-0019(1), we apply the Director’s standards, including and considering the WCD’s interpretation of that rule as explained in its December 22, 2014 ‘Industry Notice.’ See, e.g., William E. Hannah, 68 Van Natta 55 (2016).”


In this case, claimant’s attending physician estimated that his patient was significantly limited for 5/8th’s a period of time. (Wonder how he arrived at that mathematical estimate…) The Board observed (astutely) that this estimate “might support a conclusion that claimant was unable to repetitively use those body parts for more than two-thirds of a period of time….” The Board went on to observe, however, that the attending physician subsequently opined that claimant did not suffer from a chronic condition because “[claimant’s] injury was minimal and healed.” Affirmed

NOTE: The Department’s “two-thirds of a period of time” threshold is vague and overbroad, and should be challenged. What period of time? An hour? The “Industry Notice” provides that “[a]ny frequency is permissible as long as usage is repeated.” So, again, how many repetitions are needed? More than one?


Ernesto Leon-Lemus, 68 Van Natta 1547 (2016)
(ALJ Marshall)

Claimant appealed an Opinion & Order that affirmed an Order on Reconsideration whole person impairment award of 9 percent.

In October 1998, claimant sustained an injury to his right shoulder, and filed a claim which was accepted for the condition of right shoulder strain. In June 2013, claimant sustained a second work- related right shoulder injury, and filed a claim which was accepted, by SAIF, for the condition of right shoulder tendonitis. Subsequently, the scope of that claim was expanded to include the condition of full thickness tear supraspinatus tendon tear.

SAIF closed the claim in June 2015, with an 8 percent whole person impairment award. Claimant requested reconsideration and the appointment of a medical arbiter.

Claimant was examined by Timothy Borman, M.D. Dr. Borman found claimant eligible for a 5 percent chronic condition award under OAR 436-035-0011(3). He also, found a 7 percent impairment, but attributed 50 percent of that impairment to preexisting right shoulder problems. So, the ARU increased claimant’s impairment award to 9 percent. Claimant requested a hearing, asserting that his impairment should not have been apportioned. The ALJ concluded that the ARU properly apportioned the impairment. Claimant requested review.

A worker is entitled to a value for those findings of impairment that are permanent and caused by the accepted compensable condition and direct medical sequelae. ORS 656.268(15); OAR 436 -035-0007(1); Stuart C. Yekel, 67 Van Natta 1279 (2015). Where a worker has a superimposed or unrelated condition (like a preexisting condition), only disability due to the compensable condition is rated under the “apportionment” rule, OAR 436-035-0013. If impairment is entirely due to causes that are not related to the compensable injury, a permanent impairment award is not appropriate. Paula Magana -Marquez, 66 Van Natta 1300 (2014), aff’d, Magana-Marquez v. SAIF, 276 Or App 32 (2016).

To qualify as a “preexisting condition,” a condition must contribute to disability or a need for treatment and, unless the condition is arthritis or an arthritic condition, the worker must have been diagnosed with, or obtained medical services for, the condition before the initial injury. See ORS 656.0005(24)(a); Patty A. Stafford, 62 Van Natta 2493 (2010). While, in this case, claimant had a prior injury in 2009, there was no evidence that the prior injury “contributed” to his disability. Because of this, there was no evidence of a “preexisting condition,” and, therefore, no basis for apportionment.

Based on Dr. Borman’s impairment findings, the Board increased claimant’s impairment award to 12 percent. Modified