WKMBCLAW.COM Presents: Bradley G. Garber’s Board Case Update for June 14, 2018

Dr. Garber’s

by Brad G. Garber
Wallace, Klor, Mann, Capener & Bishop

June 14, 2018 

Tawnya Knight, 70 Van Natta 673 (2018)
(ALJ Riechers) 

Claimant requested review of an Opinion & Order that upheld the self-insured employer’s denial of her injury claim for a right shoulder condition allegedly resulting from … get this… breaking up bananas!

Claimant developed right shoulder pain on April 30, 2016, while demonstrating an appliance that makes ice cream from frozen fruit.  She told her supervisor that her shoulder was hurting after prying apart frozen bananas.

Claimant sought treatment on May 12, 2016 for dizziness and right shoulder pain.  The physician’s assistant assessed a right shoulder bursitis.  Apparently, claimant complained that her shoulder pain worsened with overhead activity.  (Nothing is mentioned, in the Board’s Order about the mechanics of breaking apart frozen bananas.  Was claimant lifting the bananas over her head?).

There was history of right shoulder pain that started during claimant’s teenage years and was described as “constantly throbbing.”  When claimant went to an emergency room, on June 4, 2016, she reported that she had to stab frozen bananas that were in gallon freezer bags, break them apart and forcefully shove them through a machine to complete her appliance demonstration.  This was the mechanism of injury.

When claimant was subsequently examined by Dr. Ryan, an orthopedist, she reported that she injured her shoulder while lifting a heavy bag of frozen bananas and, since that time, experienced pain with overhead activity.

Ms. Arntson, a supervisor, testified that, by the time claimant started her demonstration, the bananas would have been defrosted and claimant would not need to “stab” them.  Ms. Arntson also testified that claimant had reported a post-work “scooter incident,” in which she “jammed” her shoulder, prior to the alleged work-related date of injury.

After discussing claimant’s testimony, at hearing, over the course of four pages, the Board found claimant to be most credible.  Reversed; $12,500 assessed fee 

(Makes me recall some particular lyrics in a Gwen Stefani tune).

 William W. Hoffnagle, 70 Van Natta 688 (2018)
(ALJ Mills) 

The self-insured employer requested review of an Opinion & Order that: (1) affirmed an Order on Reconsideration that found that a Notice of Closure was void; and (2) awarded a $2,000 employer-paid attorney fee for allegedly unreasonable claim processing.

On July 2, 2013, the employer issued an Amended Notice of Acceptance, which identified the accepted condition as left hip contusion/strain and left gluteal soft tissue contusion, combined with preexisting, noncompensable, lumbar spondylosis.  On July 3, the following day, the employer denied the accepted combined condition.

Unfortunately, on September 3, 2014, the Board set aside the employer’s combined  condition denial and remanded the matter to the employer for processing. William W. Hoffnagle, 66 Van Natta 1522 (2014).  The employer requested judicial review.  In April 2017, the Court of Appeals affirmed the Board’s Order. Shearer Foods v. Hoffnagle, 284 Or App 859 (2017).

While waiting for the Court of Appeals decision, the employer notified claimant, on July 6, 2016, that it would close his claim if he did not seek treatment within 14 days.  On July 27, 2016, the employer issued a “Conditional Updated Notice of Acceptance at Closure” and a Notice of Closure, administratively closing the claim.  Oooops! 

Claimant requested reconsideration of the Notice of Closure.  The Appellate Review Unit (ARU) noted that, instead of issuing a document entitled “Updated Notice of Acceptance at Closure,” as required by OAR 436-030-0015(1)(c)(A)(i), the employer inserted the word “Conditional.”  Because the employer inserted a word not expressly allowed by the rule, the ARU determined that the Notice of Closure was void and dismissed claimant’s Request for Reconsideration, citing Bertha Paniagua, 46 Van Natta 55 (1994)(strict compliance with applicable rules is required to effectuate administrative claim closure).

The employer requested a hearing and contended, at hearing, that the ARU erred because the “Conditional Updated Notice of Acceptance at Closure” “strictly complied” with OAR 436-030-0015(1)(c)(A)(i), because it contained the required title and added “additional information.”

The Board answered this contention, as follows:

“For an administrative closure to be proper, the notice must be in strict compliance with the applicable rule. [Paniagua v. Liberty Northwest Ins. Corp., 122 Or App 288 (1993)]; Anthony D. Cayton, 66 Van Natta 1678, 1682 (2014); Jim D. Edwards, Jr., 59 Van Natta 2332, 2336 (2007).  Further, when a rule specifically and unambiguously requires an employer to follow a certain procedure, substantial compliance is not sufficient.  See SAIF v. Robertson, 120 Or App 1, 5 (1993).” 

The Board found that the Notice of Closure was invalid because of the work “Conditional.”  It went on to find that the claim processing was, therefore, unreasonable and awarded claimant a 25% on amounts ultimately found due, in addition to assessing a penalty-related fee of $6,000.

NOTE: Don’t get fancy! 

Scott T. Richardson, 70 Van Natta 734 (2018)
(ALJ Otto) 

An Order on Reconsideration awarded claimant no work disability; the ALJ awarded 24% work disability.  The self-insured employer appealed the Opinion & Order.

The main reason I report this decision is simply to point out that, after several pages of explanation, the Board reduced claimant’s work disability award to 20%.  But, because the award was not totally eliminated, claimant’s attorney was entitled to an assessed attorney fee, pursuant to amended ORS 656.382(2).

“If a request for hearing . . . is initiated by an employer or insurer, and the Administrative Law Judge, board or court finds that all or part of the compensation awarded to a claimant should not be disallowed or reduced, . . . the employer or insurer shall be required to pay to the attorney of the claimant a reasonable attorney fee set by the Administrative Law Judge, board or court. . . .” ORS 656.382(2).

Isn’t this ambiguous?  The award was, indeed, reduced, from 24% to 20%.  So, let’s break this down.  Let’s say the statute reads, “…all . . . of the compensation awarded to a claimant should not be disallowed or reduced.”  In this case, “all” of the reward was reduced; it was not eliminated. What if it stated, “…part of the compensation awarded to a claimant should not be disallowed or reduced?”  The part of the compensation that was not disallowed or reduced was the 20% that remained, after the 24% award was reduced.  So…I would argue that the statute only makes sense if an ALJ or Board reduces an award and the employer takes it to the next step (Court of Appeals) and does not eliminate or reduce, further, the compensation.