WKMBCLAW.COM Presents: Bradley G. Garber’s Board Case Update for October 17, 2017

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

October 17, 2017 
From the Board: 

David C. Sellers, 69 Van Natta 1336 (2017)
(ALJ Pardington)

The self-insured employer appealed an Opinion & Order that: (1) found that the Hearings Division had jurisdiction over claimant’s hearing request raising the issue of a “pre-hearing” discovery request violation; and (2) awarded penalties and fees for alleged unreasonable claim processing.

After claimant’s injury, the employer accepted a right shoulder injury.   For some reason, claimant retained an attorney on December 4, 2015, seven months after his injury.  In a letter to the employer dated December 7, 2015, the attorney requested discovery, “within fifteen (15) days.”

On December 23, 2015, the attorney requested a hearing, alleging a failure to timely provide discovery, and requesting penalties and fees for unreasonable claim processing.  Discovery was sent to claimant’s attorney on December 30.

Citing James L. Williams, 65 Van Natta 874 (2013), the ALJ reasoned that claimant’s December 23, 2015 hearing request was not limited to penalty and fee issues because it also alleged a failure to provide discovery.  Consequently, the ALJ concluded that the Hearings Division had jurisdiction over the dispute.  Additionally, finding that the employer had violated its discovery obligations and ORS 656.331(1)(b), the ALJ awarded a penalty and penalty-related fee under ORS 656.262(11)(a) and ORS 656.382(1).

On review, the employer continued to argue that the Hearings Division lacked jurisdiction over the issues raised by claimant.

The Board reviewed its decision, in Williams, and to its credit decided that it had been wrong.  In Williams, the Board concluded that it had jurisdiction over a request for hearing that raised, as issues, the carrier’s “failure to provide discovery” of a medical report, penalties and fees.  Citing Coman v. Corrections Dep’t, 327 Or 449 (1998), the Board explained that “a hearing request alleging a discovery violation is not limited to penalty and attorney fee issues” because “an ALJ may also issue an enforceable order for the production of records.”  Even though there had been no motion to compel production, the mere fact that such an event might call the Hearings Division into action was enough to vest jurisdiction with the Board.

The Board reconsidered this position, as follows:

“Upon further reflection, we conclude that the Williams reasoning was based on a false premise.  Specifically, Williams equated the mere reference to a “failure to provide discovery” in a hearing request as a motion for an ALJ’s order compelling such discovery.  Yet, the Williams decision does not indicate that the record established that the claimant’s hearing request sought such an order.  In contrast, in Coman, the discovery dispute involved a specific request for an order to compel the production of medical records after the carrier denied the claimant access to those records.”

penalty and fee issues raised by claimant.  The Department had jurisdiction under ORS 656.262(11)(a).  Dismissed and transferred to the Division for resolution.  Affirmed on reconsideration: David C. Sellers, 69 Van Natta 1463 (2017) 

NOTE: The exact same jurisdiction issue was raised, at the hearings level, in Dawn Turner, 69 Van Natta 444 (2017), and employer’s motion to dismiss was denied, based on Williams and Croman.  Now that Williams has been disavowed, raise the jurisdiction issue whenever claimants request a hearing, seeking only penalties and fees.  Jurisdiction resides with the Department.

Danny E. Arvidson, 69 Van Natta 1434 (2017)
(ALJ Sencer)

The employer requested review of that portion of the ALJ’s Order that awarded an assessed fee, pursuant to ORS 656.382(2), when the employer’s request concerning an Order on Reconsideration was dismissed as untimely filed.

The employer’s Request for Hearing, from an Order on Reconsideration, was untimely and was dismissed.  The issue was whether claimant’s attorney was entitled to a fee under ORS 656.382(2).  That statute provides for the assessment of a reasonable attorney fee, at the hearing level:

“If a request for hearing * * * is initiated by * * * an insurer, and the [ALJ] * * * finds that all or part of the compensation awarded to a claimant should not be disallowed or reduced, or, through the assistance of an attorney, that * * * all or part of the compensation awarded by a reconsideration order should not be reduced or disallowed.”

In this case, the hearing request was dismissed, as untimely.  No award was reduced or disallowed.  Under the circumstances, ORS 656.382(2) did not apply and there was no basis for an assessed attorney fee.  See, also, Bardomiano Espinoza, 64 Van Natta 432 (2012); Michael Kelly, 60 Van Natta 552 (2008).  Reversed 

Dennis E. Reynolds, 69 Van Natta 1456 (2017)
(Order on Remand) 

This matter, reported on previously, was sent back to the Board, on remand from the Court of Appeals. Reynolds v. USF Reddaway, Inc., 283 Or App 21 (2016) rev den, 361 Or 311 (2017).  The court reversed the Board’s order in Dennis E. Reynolds, 66 Van Natta 966 (2014), wherein the Board found that claimant’s new/omitted medical condition claim was barred by claim preclusion or the “law of the case.”

Claimant injured his low back on January 28, 2011.  His claim was accepted for a lumbar strain.  In April, he filed a new/omitted condition claim for an L5-S1 disc herniation, which the employer denied, on June 3, 2011.  Claimant did not request a hearing and the denial became final.

In July 2012, claimant filed another new/omitted medical condition claim for an L5-S1 disc herniation, which the employer denied.  This time, claimant requested a hearing.

Finding the opinions of claimant’s medical expert most persuasive, the ALJ set aside the employer’s denial.

On review, the Board concluded that the second new/omitted condition claim was precluded by the final denial of the previous new/omitted medical condition claim.  Alternatively, the Board reasoned that the “law of the case,” established by the previous denial, compelled it to uphold the second denial and reverse the ALJ’s Opinion & Order.

The Court of Appeals explained that the “law-of-the-case” doctrine is preclusive only with respect to a prior ruling or decision by an appellate court, as opposed to a trial court of administrative body, and rejected the Board’s conclusion that the first denial constituted the “law of the case.”  Because claimant’s expert opined that the original injury set in motion a process that gradually resulted in a true disc herniation, by the time of the second new/omitted condition claim, the Court concluded that the second claim was not based on the same set of operative facts as the first and was not, therefore, barred by claim preclusion.  It remanded the matter to the Board, for proper application of the law.

On remand, the Board found claimant’s expert most persuasive and set aside the employer’s second denial. Opinion & Order affirmed; $9,000 attorney fee for services on Board review and on remand.  

From the Supreme Court: 

SAIF v. Carlos-Macias, A150950; S062422 (October 5, 2017) 

“Petitioners’ petition for review is allowed.  The decision of the Court of Appeals is vacated, and this case is remanded to the Court of Appeals for reconsideration in light of Brown v. SAIF, 361 Or 241, 391 P3d 773 (2017)”

Prediction (by Karnack): SAIF v. Carlos-Macias, 262 Or App 629 (2014), based on the decision in Brown v. SAIF, 262 Or App 640 (2014), will also be reversed.

Court of Appeals: 

Garcia-Solis v. Farmers Ins. Co., 1203622; A1566734 (September 27, 2017) 

Claimant suffered a head injury when struck by a tent pole during a storm.  Her claim was accepted for the conditions of: (1) concussion; (2) closed head injury; (3) chronic headache syndrome; (4) facial scarring; and (5) right supraorbital nerve injury.

Claimant’s attending physician sought to refer her to a psychologist or counselor for assessment for possible PTSD.  The employer denied authorization for the referral because the proposed medical service was not directed toward one of the accepted conditions.

After hearing, the ALJ observed that the proposed medical service was due, in material part, to the work-related injury.  But, the ALJ determined that the medical service was not necessitated, in material part, by any of the accepted conditions.

This decision was upheld by the Board, and ultimately, the Court of Appeals, due to the Supreme Court’s recent decision in Brown v. SAIF, 361 Or 241 (2017).  The Court also, relied upon its pre-Brown holding in Roseburg Forest Products v. Langley, 156 Or App 454 (1998)(diagnostic services for the purpose of establishing the compensability of a new or consequential condition are not compensable).  In other words, fishing expeditions are not compensable. 

Beaudry v. SAIF, 1401240; A159575 (October 4, 2017) 

Claimant’s wife sought review of a Board Order found that she was not entitled to compensation for her husband’s death in a motor vehicle accident.  The Board determined that the decedent was a traveling employee on the date of injury, but that he was engaged in a distinct departure from his employment, on a personal errand, and was thus not a subject worker when involved in the accident.

The decedent lived in Coos Bay, Oregon, but was working in Newport.  He stayed in a motel, in Newport, during the week.  The employer allowed employees to use company vehicles for personal travel, and paid for gasoline for personal trips not to exceed 100 miles.

After his shift, on November 18, 2013, the decedent was asked if he wanted to accompany a co-worker on a trip to Philomath, so that the co-worker could Christmas shop for his wife.  Decedent agreed to go along for the ride.  The co-worker drove a company vehicle.  After the shopping was done, and on the way back to Newport, the decedent was killed in a head-on collision on Highway 20.

Claimant, the decedent’s wife, sought workers’ compensation benefits.  The employer denied the claim, arguing that decedent was on a personal errand not reasonably related to his traveling employee status.  The Board agreed and upheld the denial.

Here’s the problem…the decedent was not the one on a personal errand; his co-worker was on the personal errand.  The decedent was just going along for the ride.  Going along for the ride had absolutely nothing to do with his status as a traveling employee.  The employer’s argument was, as follows:

“ . . . [W]hen a person is a traveling employee, although certain activities of a personal nature are considered to be within the course of employment, the activity still must bear some reasonable relationship to the worker’s traveling-employee status.  In this case, employer contends, the shopping trip, although not forbidden by employer, was not within the course of employment because it did not bear any relationship to [decedent’s] employment and because it was not an activity that arose from the necessity of travel.”

The Court of Appeals agreed with this.  Affirmed 

Query: Was the claim, presumably filed by the driver of the vehicle, also denied?