WKMBCLAW.COM Presents: Bradley G. Garber’s Board Case Update for June 1, 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

 June 1, 2018 

Jared L. Bledsoe, 70 Van Natta 608 (2018)
(ALJ Brown)

The self-insured employer requested review of an Order the declined to authorize an offset for alleged overpaid temporary disability benefits.

In November 2014, the employer accepted claimant’s claim for benefits for Post Traumatic Stress Disorder (PTSD).  The claim was closed in March 2016 with an award of temporary disability benefits.  Claimant requested reconsideration and, by Order on Reconsideration, in April of 2016, the Notice of Closure was set aside, as premature.

In August of 2016, claimant was examined by Dr. Heck, a psychiatrist.  Dr. Heck opined that claimant’s PTSD was in remission a year, earlier, in August of 2015, and that he was medically stationary, without permanent impairment.

Dr. Thompson, claimant’s attending physician disagreed with Dr. Heck’s assessment that claimant suffered no permanent impairment as a result of his PTSD.  Otherwise, he agreed with the remainder of Dr. Heck’s report.

After another Notice of Closure and another rescission based on insufficient evidence, the claim was finally closed on February 27, 2017.  Claimant received a 23% whole person impairment award, a 26% work disability award, and TTD benefits from September 10, 2014 to March 22, 2015, and April 17, 2015 to July 17, 2015.  Finding claimant medically stationary as of August 1, 2015, the Notice of Closure authorized the employer to deduct overpaid benefits from any current or future benefits due under ORS 656.268.

On March 2, 2017, the employer notified claimant of overpaid benefits from August 5, 2015 to November 27, 2015, and from November 30, 2015 to February 14, 2017.  The employer notified that the overpaid benefits would be deducted from his PPD award.

Claimant requested reconsideration of the Notice of Closure and, on May 22, 2017, an Order on Reconsideration modified claimant’s medically stationary date, from August 1, 2015 to February 17, 2017, and affirmed the PPD award.  It did not adjust the TTD award dates.

The employer and claimant, both, requested a hearing from the Order on Reconsideration.

The ALJ affirmed the Order on Reconsideration’s medically stationary date and reasoned that claimant was entitled to the TTD benefits that were previously paid by the employer.  In short, there was no overpayment, so no right to offset.  The employer requested review.

The employer argued, on appeal, that entitlement to substantive TTD benefits was not raised as an issue, on reconsideration of the Notice of Closure.  See ORS 656.268(9).  ORS 656.268(5)(c) requires a party who objects to a Notice of Closure to first seek reconsideration by the Director.  Issues no raised by a party to the reconsideration may not be raised at hearing unless the issue arises out of the reconsideration order, itself.  ORS 656.268(9); ORS 656.283(6); Pressing Matters v. Carr, 248 Or App 41 (2012).

In this case, claimant’s request for reconsideration of the Notice of Closure specified that the only issues for resolution were premature closure, the medically stationary date, and the extent of PPD.  The little box on the Request for Reconsideration form, for “temporary disability” was not checked.  Oops! 

Bottom line – an issue not raised, on reconsideration, cannot be raised at hearing,  unless the issue arises out of the Order on Reconsideration, itself.  See, Steve Meadows, 67 Van Natta 1598 (2015); Annette M. Lane, 69 Van Natta 1537 (2017); Chester J. Dzienis, Jr., 66 Van Natta 1090 (2014). Reversed; overpayment to be recovered in manner prescribed by OAR 436-060-0170.  

OBSERVATION: Even if the medically stationary date is not raised as an issue, on reconsideration, the ARU will address the issue 

Robert L. Stanley, 70 Van Natta 618 (2018)
(ALJ Ogawa)

SAIF requested review of an Order that awarded an assessed attorney fee under ORS 656.383(1) for claimant’s counsel’s services during the reconsideration proceeding, which resulted in an Order on Reconsideration rescission of a Notice of Closure, as premature.

Claimant’s claim for benefits was accepted for an abdominal hernia condition.  About two months later, he was declared medically stationary and released to regular work.

On January 12, 2017, a Notice of Closure awarded temporary disability through the medically stationary date, but no PPD.  Claimant requested reconsideration.

On February 16, 2017, an Order on Reconsideration set aside the Notice of Closure set aside the claim closure as premature.  The Order provided that, pursuant to ORS 656.268(6)(c), “[w]hen appropriate, the [carrier] is ordered to pay worker’s attorney, out of any additional compensation awarded, an amount equal to 10% of any additional compensation awarded to the worker.”

Claimant’s attorney then requested a hearing, seeking an assessed fee under ORS 656.383(1).  Contending that the Request for Hearing did not pertain to a “matter concerning a claim,” because it did not concern claimant’s right to compensation, SAIF moved for dismissal, due to lack of jurisdiction.

After hearing, the ALJ concluded that the Hearings Division had jurisdiction to address the attorney fee issue.  Based on the reconsideration order’s rescission of the closure notice and the “potential” for additional procedural TTD benefits accruing, as a result of that rescission, the ALJ awarded a “contingent” attorney fee under ORS 656.383(1).

On review, before the Board, SAIF continued to assert that the Hearing Division lacked jurisdiction to address the attorney fee issue.  SAIF also contended that an assessed fee, under ORS 656.383(1) is not available because: (1) there was no dispute over TTD benefits; (2) ORS 656.383 does not apply to reconsideration proceedings; and (3) assuming ORS 656.383(1) applies, claimant was released to “regular work” and, thus, his attorney was not “instrumental” in obtaining TTD benefits.

Not surprisingly, the Board found that it had jurisdiction over the sole issue of entitlement to an assessed attorney fee.  This jurisdictional issue was addressed in Mekayla N. Dancingbear, 70 Van Natta 550 (2018).  This, apparently, was based on ORS 656.268(9), which grants the Hearings Division jurisdiction to resolve “issues arising out of [a] reconsideration order.”  See, Jeffrey A. Schultz, 65 Van Natta 829 (2013).

As for the attorney fee, the Board had the following to say:

“In Dancingbear, we also resolved whether an assessed attorney fee under ORS 656.383(1) is available for services during the reconsideration process.  After conducting a thorough statutory construction analysis, we held that ORS 656.383(1) was not intended to apply to the reconsideration process.  Accordingly, applying the Dancingbear rationale, claimant’s attorney is not entitled to an attorney fee under ORS 656.383(1) for his services during the reconsideration process in support of the reconsideration order’s premature closure finding.”  Reversed. See John C. Cole, 70 Van Natta 627 (2018) 

And, from the Court of Appeals:

Hartvigsen v. SAIF, 1106234, 1104605; A158082 (May 9, 2018)

The Court framed the issue, as follows:

“The question in this workers’ compensation case is whether claimant, whose new/omitted medical condition claim for bilateral deQuervain’s tenosynovitis has been denied, is entitled to an assessed attorney fee for gaining employer Adecco’s acknowledgment that the condition is compensable and is encompassed within Adecco’s original acceptance of a claim for ‘wrist sprain.’”

Claimant filed a claim for benefits which was accepted, by Adecco, for the condition of nondisabling bilateral wrist sprain.

After claim acceptance, claimant returned to her attending physician and the diagnosis was modified to include bilateral wrist tenosynovitis, forearm strain and bilateral lateral epicondylitis.  Adecco was not asked to accept additional conditions and, therefore, did not accept these additionally-diagnosed conditions.  It closed the claim, in December 2010, with no award for PPD.

Claimant continued to suffer from symptoms and, in May 2011, she filed an 827 Form, raising a “new” condition claim for bilateral deQuervain’s tenosynovitis.  Adecco denied responsibility for the condition, stating that “[i]t appears this new condition is the result of recent employment” with Greenway Chiropractic, a subsequent employer.  Claimant, then, filed a claim with Greenway Chiropractic, seeking compensation for deQuervain’s tenosynovitis as an occupational disease.  SAIF denied the occupational disease claim.  Claimant requested a hearing from both denials.

Prior to hearing, claimant’s attending physician signed a “concurrence” report in which he stated, “[H]owever inartful, the accepted general diagnosis of ‘bilateral wrist sprain’ encompassed the more specific and preferable diagnosis of ‘bilateral wrist tenosynovitis’ or ‘deQuervain’s tenosynovitis’ in the chart.”  He agreed that the condition of bilateral deQuervain’s tenosynovitis was functionally identical to, and encompassed by, the condition of “bilateral wrist sprain” that had been previously diagnosed and accepted.

In light of this new medical evidence, on the day before the hearing, Adecco amended its previous denial and indicated that, because deQuervain’s had already effectively been accepted, it did not constitute a “new” or “omitted” condition. It, therefore, remained denied, but for a different reason.  In effect, Adecco admitted responsibility for the condition.  Claimant contended that, by acknowledging responsibility for the condition, Adecco’s amended denial was a rescission of its original denial of responsibility and that claimant, therefore, was entitled to attorney fees under ORS 656.308(2)(d) or ORS 656.386(1).

The Hearings Division found that claimant’s bilateral deQuervain’s tenosynovitis was compensable and the responsibility of Adecco.  The ALJ did not, however, award an attorney fee.  The Board affirmed the ALJ’s Opinion & Order.  On judicial review, the Court of Appeals agreed that the deQuervain’s condition was compensable, and the responsibility of Adecco.  The Court disagreed with the Board, however, on the attorney fee issue, observing as follows:

“If Adecco’s original denial of the claim had been based on its determination that the condition was encompassed within the accepted claim for ‘wrist sprain,’ then claimant would have been assured that the condition was Adecco’s responsibility and would not have need to pursue litigation. * * * But this case does not present that scenario.  Adecco’s original denial of responsibility did not assert that the condition was encompassed within the acceptance of ‘wrist sprain’; it asserted that the deQuervain’s tenosynovitis was a new condition that was the responsibility of claimant’s subsequent employer.”

The Court considered Adecco’s amended partial denial to constitute a rescission of its previous responsibility denial.  Claimant’s attorney “finally prevail[ed] against a responsibility denial” and was entitled to an assessed fee under ORS 656.308(2)(d).  Remanded for award of attorney fee 

Fred Meyer Stores, Inc. v. DeBoard, 1403132; A159640 (May 16, 2018)

I like the opening paragraph, (sort of a thumbing of the Court’s nose at the Oregon Supreme Court):

“Although this workers’ compensation case does not involve angels dancing on pin heads, it does involve dancing around medical terms and an emphasis on hyper-technicality that has unnecessarily delayed the resolution of what should have been a straight-forward new/omitted medical condition claim.  And, unfortunately, in light of a change in the law since the board’s order, we must once again extend this litigation by remanding the case for reconsideration.”

This, of course, is a matter that was previously before the Court of Appeals, after its since refuted decision in Brown v. SAIF, 262 Or App 640 (2014).  Based on that decision, the Board found that the employer did not meet its burden to show that the “otherwise compensable injury” was not the major contributing cause of claimant’s disability or need for treatment due to a combined condition.  The Oregon Supreme Court, however, reversed the Court of Appeals decision and reinstated the “otherwise compensable condition” test.  In light of that reversal, the Court of Appeals had to send this case back to the Board to apply the correct legal test.  Reversed and remanded