WKMCBLAW.COM Presents: Bradley G. Garber’s Board Case Update for May 12, 2017

Dr. Garber’s



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

Board Case Update: 05/12/2017 

Robert M. Coleman, Jr., 69 Van Natta 850 (2017)
(ALJ Marshall)

SAIF requested review of the Opinion & Order that: (1) awarded an $8,000 assessed attorney fee for an alleged de facto denial of claimant’s new/omitted medical condition claim; and (2) assessed a penalty and a penalty-related attorney fee for allegedly unreasonable claim processing.

Claimant filed a claim for a left knee injury.  On August 11, 2015, SAIF accepted the claim for the conditions of left knee strain and left knee contusion.

Before claim acceptance, on June 29, 2015, claimant’s attending physician, Dr. Bowman, filed an 827 form requesting acceptance of a medial femoral chondral defect as a “new or omitted medical condition on an existing claim.”

On October 21, 2015, claimant requested a hearing, asserting a “de facto” denial after claim acceptance, seeking a penalty and penalty-related attorney fee.  SAIF responded that claimant’s Request for Hearing was premature.

At hearing, SAIF argued that Dr. Bowman’s 827 form was filed before the initial Notice of Acceptance and, therefore, there was no de facto denial.  After taking testimony, the judge left the record open for a medical report, depositions and rebuttal.

On January 29, 2016, while the record was still open, claimant’s counsel sent a letter to the ALJ, asserting that SAIF knew about the assessment of a medial femoral chondral defect when it issued its Notice of Acceptance and that, failure to include that condition within the scope of claim acceptance constituted a de facto denial of that condition.

Then, on April 6, 2016, claimant initiated a new/omitted medical condition claim for chondromalacia and left knee medial compartment full thickness chondral cartilage defect.  On June 7, 2016, SAIF modified the scope of its acceptance to include those conditions.  SAIF did not respond to claimant’s January 29, 2016 letter to the ALJ.

The ALJ determined that claimant’s January 29, 2016 letter triggered SAIF’s obligation to accept or deny the medial chondral defect condition within 60 days.  He awarded claimant’s attorney a fee of $8,000 under ORS 656.386(1), and assessed another $2,000 penalty-related fee under ORS 656.262(11)(a).

On review, SAIF contended that claimant’s hearing requests did not comply with the communication requirements of ORS 656.262(6)(d) and ORS 656.262(7)(a).  Particularly, SAIF asserted that claimant’s letter to the ALJ did not constitute a new/omitted condition claim.

The Board observed, as follows:

“If a worker is dissatisfied with the scope of a carrier’s acceptance or believes that additional conditions should be accepted, the statutory scheme provides for the worker to clearly request formal written acceptance of new/omitted medical conditions. [citations omitted]. The carrier has 60 days after it receives the claimant’s request to accept or deny such claims. [citations omitted]. A worker who fails to comply with the communication requirements in ORS 656.262(6)(d) and ORS 656.262(7)(a) may not allege a de facto denial of a condition based on information in the notice of acceptance.”

The Board determined that SAIF’s initial claim acceptance satisfied its processing obligations under ORS 656.262(6)(a).  If claimant was dissatisfied with the scope of claim acceptance, it was his obligation to file a “new” or “omitted” condition claim.  He did not do that; instead he filed a Request for Hearing.  The Board determined that there was no de facto denial.

With regard to the January 29, 2016 letter to the ALJ, the Board determined that this was not a clear request for formal written acceptance of the medial femoral chondral defect.  Thus, there was no de facto denial.  Reversed 

Jack L. Edwards, 69 Van Natta (2017)
(ALJ Lipton)

The self-insured employer requested review of an Opinion & Order that: (1) set aside its denial of claimant’s new/omitted medical conditions claim for 18 lumbar spine conditions; and (2) awarded a $10,000 assessed attorney fee.

Claimant sustained a compensable hip injury in 1980.  Thirty-five years later, on December 15, 2015, claimant initiated a new medical conditions claim for: (1) L1-2 spondylosis; (2) L2-3 osteophyte; (3) L3-4 osteoarthritis; (4) L3-4 facet arthritis; (5) L3-4 degenerative disc disease; (6) L3-4 radicular syndrome; (7) L4-5 osteoarthritis; (8) L4-5 facet arthritis; (9) L4-5 degenerative disc disease; (10) L4-5 radicular syndrome; (11) L4-5 retrolisthesis; (12) L5-S1 osteoarthritis; (13) L5-S1 facet arthritis; (14) L5-S1 degenerative disc disease; (15) L5-S1 radicular syndrome; (16) L5-S1 spondylolisthesis; (17) L5-S1 bilateral foraminal stenosis; and (18) nerve root compression of the L5 nerve root conditions.  Remember: a claimant can make a new/omitted conditions claim “at any time.” 

For many years, after claimant’s hip injury and various surgeries, treating and independent physicians predicted that claimant would eventually have low back problems because of a fused hip, altered gait and hip replacement.  It was not until Dr. Grewe was involved, however, in 2008, that a medical connection was made between claimant’s 1980 injury and his current low back condition.

After an IME report by Drs. Teed and Almaraz, on December 21, 2015, compensability of all of claimant’s newly-claimed conditions was denied.  The denial was dated January 21, 2016.  Claimant had already undergone surgery on his low back, at L5-S1, on December 28, 2015.

After hearing, relying on Dr. Grewes analysis, the ALJ set aside the employer’s denial, determining that claimant’s 1980 injury was the major contributing cause of all of claimant’s claimed lumbar conditions.  Employer (yours truly) requested reconsideration, contending that claimant failed to prove that the L1-2 through L4-5 conditions were compensable.  Reconsideration was denied.  Employer requested Board review, primarily to clarify the scope of claim acceptance.

On review, the Board agreed with me that claimant presented no evidence that the conditions claimed, from L1-2 through L4-5 were compensably related to his 1980 injury.  Because of this, claimant’s counsel’s attorney fee was reduced, from $10,000 to $7,000.  Because of an alternate responsibility defense that he successfully defended against, however, claimant’s attorney was awarded a $4,500 attorney fee.  Net gain, $1,500.  Affirmed in part, reversed in part, modified in part 

CAUTION:  If you deny a number of alleged conditions in your denial, and your denial is set aside, be sure that compensability of each, and every, alleged condition has been proven.

And from the Court of Appeals:

Lowells v. SAIF, 1202172; A155678 (May 3, 2017) 

Claimant sought judicial review of a Board Order on Review that held that her chronic low back pain was not compensable as the result of an occupational disease process, because the major contributing cause of her condition were factors personal to her, such as weight, deconditioning, and history of tobacco abuse.

Claimant worked for many years as a home health care worker.  In 2011, she had an accepted claim for a lumbosacral strain.  That claim was closed without a PPD award.  Then, claimant filed a claim with SAIF, asserting that her many years working in home health care caused an occupational disease that she described as “chronic back pain.”

Here’s the evidentiary clincher: “Dr. Ingle, claimant’s attending physician, testified by deposition that ‘none of [claimant’s] work activities are responsible for her current symptoms of discomfort with activity.’  Ingle testified that ‘if there’s anything that’s really causing her symptoms, it’s really her deconditioning, her age, her weight, et cetera, and not adequately making herself physically fit for the job that she currently has.’”

You’d think that would have been the nail in the coffin 

On judicial review, claimant asserted that the personal factors on which the Board relied were not causes, but mere susceptibilities or predispositions that could not, legally, be taken into account in determining the major contributing cause of her chronic low back condition.

In Liberty Northwest Ins. Corp. v. Sturgeon, 109 Or App 566 (1991), the Court explained that, in the context of an occupational disease claim, a worker’s personal factors are part of the equation in determining the major contributing cause of the condition, as long as they are characterized as “causes.”  Dr. Ingle clearly testified that claimant’s personal factors were “causes,” rather than predispositions contributing to her low back chronic pain.  Based on its standard of substantial evidence review, the Court affirmed the Board’s determination that claimant’s personal (idiopathic) factors constituted the major contributing cause of her chronic low back pain, rather than her work activities.  Affirmed



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