WKMBCLAW.COM Presents: Bradley G. Garber’s Board Case Update for February 15, 2018

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

February 15, 2018 

Lorinda L. Gauthier, 70 Van Natta 96 (2018)
(ALJ McWilliams) 

SAIF requested review of that portion of the ALJ’s Opinion & Order that affirmed an Order from the Workers’ Compensation Division (WCD) that granted claimant’s request for a worker-requested medical examination (WRME). 

Claimant had an accepted claim and, at one point, asked that the scope of claim acceptance be expanded to include a dental condition.  A “Dr. Willis” conducted a records review, at SAIF’s request, and opined that claimant’s work injury was not a material cause of the dental condition.  Based on Dr. Willis’s opinion, SAIF denied the compensability of the dental condition.  In its denial, SAIF stated that the denial was based, in part, on an “insurer medical examination [IME].” Claimant requested a hearing and, also, filed a WRME request with WCD.

WCD granted claimant’s request.  SAIF requested a hearing. 

ORS 656.325(1)(e) entitles a claimant to a WRME when, among other things, the carriers’ denial is based on “one or more reports of examinations conducted pursuant to paragraph (a) of this subsection.”  ORS 656.325(1)(a), in turn, requires that a worker “submit to a medical examination” if requested by a carrier.

Because the Division and the ALJ focused on the erroneous statement, in SAIF’s denial, that its decision was based in part on the results of an examination, claimant was granted the right to proceed with a WRME.  In Denise Amos, 65 Van Natta 2100 (2013), the Board held that a physician’s “record review” did not constitute “an examination” for purposes of ORS 656.325(1)(a) and (e).  In doing so, the Board reasoned that “an examination” under those sections meant an in-person examination.

In this case, regardless of SAIF’s erroneous statement, in its denial, there was no in-person IME.  Therefore, claimant was not entitled to a WRME.  Reversed

William E. Easley, 70 Van Natta 110 (2018)
(ALJ Brown) 

Claimant requested review of an Opinion & Order that declined to award additional temporary partial disability (TPD) benefits; declined to award an assessed fee under ORS 656.383(2); and declined to award a penalty for an alleged discovery violation.

Claimant sustained a compensable injury in November 2014.  His claim was accepted for the condition of disabling left medial meniscus tear.  He underwent surgery in May 2015, and he claim was closed in November 2015.

In February 2016, SAIF reopened claimant’s claim due to a worsening of the left knee, and a second surgery was performed in March 2016.

On May 27, 2016, claimant was released to modified duty work, and he started that work on May 31, 2016.

Claimant was scheduled to work on June 16 and 17, 2016, but was sent home due to rain.  He was not paid wages for those two days, and SAIF did not pay time loss benefits.

Claimant’s claim was reclosed on August 24, 2016.  He was awarded TPD from May 28 through July 11, 2016.

On December 19, 2016, claimant’s counsel requested claimant’s payroll records, from SAIF, for the period 7/10/15 – 7/11/16.  SAIF provided everything except the record for 7/11/16.

Claimant requested a hearing, raising time loss, discovery, penalty and fee issues.  After hearing, the ALJ reasoned that claimant did not lose wages “due to his compensable injury,” on June 16 and 17, when he was sent home due to rain.  On review, the claimant asserted that the employer, in effect, withdrew its modified duty work offer, when it sent claimant home.  The Board agreed.

Here’s what the Board said:

“In effect, when the employer sent claimant home, relating it to inclement weather, and without providing alternative modified work, it effectively withdrew it modified job offer.  Once the modified job offer was withdrawn, claimant was unable, due to the work injury, to work and earn wages.  Therefore, SAIF was required to reinstate TTD benefits.  ORS 656.268(4); OAR 436-060-0030(6)….”

So, claimant was entitled to two days’ worth of TTD.  Because of this, an attorney fee of $1,000 was awarded claimant’s counsel.  Also, because of this, and because of SAIF’s discovery violation (one day off), claimant was awarded a 25% penalty on amounts due, plus his attorney made another $1,000.  Affirmed, in part; reversed, in part.

Richard Poland, 70 Van Natta 172 (2018)
(ALJ Marshall) 

Claimant requested review of an Opinion & Order that declined to recalculate his TTD rate.

The ALJ found that SAIF properly calculated claimant’s TTD rate based on his average weekly earnings over the 52-week period preceding his February 2, 2017 injury, pursuant to OAR 436-060-0025(4).

On review, claimant tried to argue that the January 2017 amendments to OAR 436-060-0025 are invalid because they exceed the Director’s statutory authority.  In doing so, he argued that the amended rule contravenes the legislature’s intent that the rate of TTD benefits be based on the “wage of the worker at the time of injury,” pursuant to ORS 656.210(2)(d)(A).  Comment: We know where this is going… 

In Hadley v. Cody Hindman Logging, 144 Or App 157 (1996), the court explained that ORS 656.210(2)(e)(former ORS 656.210(2)(c)) delegates to the Director broad authority to prescribe, by rule, “methods” for approximating the wage amount at the time of injury “for workers not regularly employed and for workers with no remuneration or whose remuneration is not based solely upon daily or weekly wages.”  Moreover, the court noted that the phrase “wage * * * at the time of injury,” as used in ORS 656.210, is an “inexact term,” meaning that the “legislature has expressed its meaning completely, but that meaning remains to be spelled out in the agency’s rule or order.”  Hadley, at 161.

The Board concluded, as follows:

“Consistent with the rationale and reasoning expressed in Hadley, we conclude that the method described in OAR 436-060-0025(4) is within the range of discretion allowed by the general policy of ORS 656.210(2)(e) and is not contrary to legislative intent.  That is, it is within the Director’s rule-making authority under ORS 656.210(2)(e) to prescribe methods for establishing the weekly wage of workers whose remuneration is not based solely upon daily or weekly wages.  Moreover, the methods prescribed in OAR 436-060-0025(4) fall within the ambit of the purpose of ORS 656.210(2)(d)(A) to provide temporary disability benefits to a worker at a rate based on the worker’s wage at the time of injury.”  Affirmed 

NOTE: Temporary changes to OAR 436-060-0025 go into effect on February 21, 2018, and remain in effect through August 19, 2018, so beware! 

Javier Pimentel-Espinoza, 70 Van Natta 183 (2018)
(ALJ Poland) 

The insurer requested review of an Opinion and Order that found it was not entitled to offset claimant’s permanent disability benefits against his proceeds from a Claim Disposition Agreement and awarded penalties and fees for unreasonable claim processing.

Claimant had an accepted claim for a right lower extremity fracture.  A November 13, 2015 Notice of Closure awarded $25,985.12 for permanent disability.

By October 2016, the insurer had paid $7,419.44 of the permanent disability award.  On October 14, 2016, claimant and the employer entered into a CDA for $32,000.  The CDA was approved, by the Board, on February 28, 2017.

The CDA specified that claimant was to receive $26,175, and claimant’s attorney was to receive $5,825.  On May 1, 2017, the insurer issued a check to claimant in the amount of $6,064.49, and a check to claimant’s attorney in the amount of $2,021.50.  It offset what had been paid in PPD benefits. Claimant requested a  hearing, seeking enforcement of the CDA, as well as penalties and fees under ORS 656.262(11)(a).

The ALJ determined that the CDA unambiguously provided for the payment of $32,000, without offset of the permanent disability award.  Accordingly, the ALJ directed the insurer to pay claimant $20,110.51, and his attorney $3,803.50.  The Board agreed, observing as follows:

“Here, before the filing of the CDA with the Board, claimant’s permanent disability benefits were due and payable.  The CDA provided for the payment of specific amounts and did not provide explicitly for the offset of permanent disability payments.  Consequently, the insurer was obligated under the terms of the CDA to pay claimant $26,175, and claimant’s attorney $5,825.”

Even though the insurer’s offsetting of PPD payments was determined to be unreasonable, under the statute and case law, the Board reversed the ALJ’s award of penalties and fees under ORS 656.386(1) and 656.262(11)(a), in the amount of $11,500, because the CDA resolved “all rights under ORS Chapter 656 other than those related to medical services under ORS 656.245 and eligibility for preferred worker status.”  Affirmed, in part, reversed, in part 

NOTE: If you are making payments on a PPD award, and you want to offset what you have paid, make sure you negotiate that issue and expressly include such a provision in the CDA.

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