Case Law Update: 10/03/11

Julia Rodriguez, 63 Van Natta 1744 (2011)

(ALJ Pardington) 

Claimant requested review of an Opinion & Order that upheld the denial of her new/omitted conditions claim.  She had an ankle injury that was accepted.  As a result of the injury, she underwent surgery.  After surgery, she had to use crutches for awhile.  She filed a claim for a right shoulder condition that arose as a result of her (improper) crutch use.  Her attending physician opined that claimant put too much pressure on her right shoulder, by use of her crutch, which resulted in a right shoulder sprain/strain.


Claimant was injured in 2007.  She underwent surgery on January 30, 2009.  In September 2009, surveillance showed claimant ambulating without the aid of a crutch.  In fact, the records revealed that claimant stopped using crutches in May of 2009.  The surveillance was conducted one month after claimant complained of right shoulder symptoms.  Dr. Vessely reviewed the surveillance and opined that claimant’s functioning was inconsistent with her subjective complaints.  Claimant’s attending physician also reviewed the surveillance films and acknowledged that claimant “had a tendency to exaggerate a bit.”  Nevertheless, the Board found claimant credible, stating, “We also do not find that claimant’s account of crutch and cane use was impeached by medical records or the surveillance video.”  Affirmed


Moral:  Be careful about spending money on surveillance


Lillian A. Wilkinson, 63 Van Natta 1839 (2011)

(ALJ Sencer)


The employer appealed an Opinion & Order that set aside its denial of claimant’s “current conditions involving the left hip and low back” as procedurally invalid.


On January 29, 2008, the employer accepted the conditions of lumbar/sacroiliac strains and left trochanteric bursitis.  Nine months later, on September 24, 2008, the employer issued a “current condition” denial, asserting that claimant’s August 29, 2007 injury combined with preexisting conditions, and that the originally-accepted condition was no longer the major contributing cause of any claimed need for treatment or disability.


The employer contended, at hearing, that it accepted a combined condition by virtue of its September 24 denial.  The denial was, as follows:


Your injury of August 29, 2007 has been accepted as a disabling

lumbar/sacroiliac strains and left trochanteric bursitis.


Medical evidence indicates that you had pre-existing conditions

relating to these body parts and that your injury of August 29, 2007

combined with these pre-existing conditions to require treatment

and cause disability.  The medical evidence also establishes that

the original accepted injury has resolved and is no longer the major

contributing cause of any claimed need for treatment or disability. * * *


We are therefore denying the compensability of your current conditions

involving the left hip and low back as not being compensably related

to your accepted injury and not arising out of and in the course of

employment with [the employer].



After issuing the denial, it issued a Notice of Closure and “Updated Notice of Acceptance at Closure.”  Neither of those documents stated that the employer had accepted a “combined condition.”


The Board focused on the fact that, nowhere in the denial, did the employer state what was accepted.  It observed, “Acknowledging the existence of a ‘combined condition,’ however, is not equivalent to accepting such a condition, as a carrier may, under qualifying circumstances, deny the initial compensability of a combined condition.”


In conclusion, the Board found that the employer’s “current condition” denial was procedurally invalid “because it denied a combined condition in the absence of an acceptance of such a condition.”  Affirmed


Jeffery L. Frost, 63 Van Natta 1890 (2011)

(Order on Reconsideration)


SAIF requested reconsideration of an Order on Review that awarded claimant a work disability award based on his affidavit that the employer’s job description did not, really, describe his real job.


Claimant’s job title, at the time of injury, was “Trades/Maint Worker 2.”  Claimant’s attending physicians reviewed this job description and agreed that claimant was capable of returning to that job.  An affidavit from claimant’s supervisor established that claimant could perform his regular work duties.  Additionally, medical reports indicated that claimant returned to his regular work.


BUT, claimant’s attending physician reported that there were occasions when claimant had to request assistance to perform his regular work duties.  In addition, SAIF’s expert, Dr. Stowell, reported that claimant was “recently returned to full duty work activity, and indicates work is going well, with no major difficulties.  He has self-limited his heavy lifting, getting help from the rest of his crew when needed.”


Based on this evidence, the Board decided that claimant never returned to his “regular work” and that he was, therefore, entitled to a work disability award.


Moral: When closing a claim, do the following: (1) get an affidavit from the worker’s supervisor that the claimant has returned to regular work; (2) that there has been no modification in claimant’s work; (3) that the worker needs no help from co-workers in performing his/her work duties; and (4) that the worker’s job description accurately describes the worker’s job. See, Brian E. Pier, 63 Van Natta 1902 (2011)(worker performed tasks other than what was itemized in his job description)



Brad G. Garber


Oregon Bar 1987

Washington Bar 1988

Oregon/Washington Workers’ Comp Defense

U.S. Ninth Circuit Court of Appeals

Co-author OSB Workers’ Compensation  “Accidental Injury Claims” 1996, 2000, 2008