Board Case Update: 06/08/11

Damon M. Bailey, 63 Van Natta 1133 (2011)

(ALJ Milld)


The self-insured employer appealed an Order that found it responsible for payment of medical services, but upheld its denial of the condition toward which the medical service (arthroscopic surgery) was directed.  The employer had accepted a right scapular strain.  After reviewing an MRI scan, the attending physician hypothesized that claimant might suffer from an anterior inferior glenoid labral tear.  He sought authorization to perform surgery to repair the tear.  The employer denied authorization and also denied claimant’s new/omitted claim for a labral tear.  The ALJ upheld the compensability denial but decided that the proposed surgery was compensable as a diagnostic medical service.


The employer argued, on appeal, that the proposed surgery was diagnostic, at all, because the diagnosis had already been rendered.  Instead, it argued, the surgery was intended to repair what had already been diagnosed.  After reviewing ORS 656.245, the Board agreed with the employer, noting that the surgery related to a condition that was not ordinarily related to the accepted scapular strain.  In other words, the labral tear was a consequential condition and the claimant had to prove that the condition was caused, in major part, by the injury.  Because he had not proven that, the related surgery was not compensable.


The Board further agreed that the proposed surgery was not intended to assist in the diagnosis of a condition related to the scapular strain but, rather, to assess and repair a noncompensable condition.  See Andrew C. Kahl, 62 Van Natta 2959 (2010); Luis Rodriguez, 59 Van Natta 104 (2007).  Reversed, in part


Mary A. Martin, 63 Van Natta 1151 ( 2011)

(ALJ Smith)


Claimant requested review of an Order the found her surgery claim not causally related to her accepted C6-7 disc condition.  Claimant sustained a compensable cervical spine injury which was accepted by SAIF for a disabling disc herniation at C5-6.  She underwent surgery at that level.  Subsequently, SAIF expanded the scope of claim acceptance to include the C6-7 disc and claimant underwent surgery at that level.  Then, claimant’s physician requested authorization to perform a fusion operation at C4 through C7.


Claimant was enrolled in an MCO.  After utilization review that indicated the proposed surgery was not medically necessary, authorization for the surgery was denied.  Claimant appealed the matter to the Department and the Department issued a deferral order to allow compensability to be addressed at the Hearings Division.  After hearing, the ALJ determined that the proposed surgery was directed at a “consequential” condition and that claimant had not carried her burden of proving that her accepted conditions were the major contributing cause of her need for treatment.


In this case, the Board analyzed the application of ORS 656.245 in a manner different than in Bailey, above.  The Board determined that the medical evidence established that claimant’s failed disc fusion at  C6-7 was an “ordinary” condition, caused “in material part” be the compensable condition.  Reversed, surgery compensable


Ashley N. Shutz, 63, Van Natta 1179 (2011)

(ALJ Fulsher)


SAIF denied claimant’s injuries sustained in a head-on MVA, after she met her supervisor, after work, and became inebriated.  She sustained a number of serious injuries and decided to request a hearing.  She explained that she wanted to be a “team player” and felt obligated to accompany her supervisor (the business owner’s son) to a restaurant, after work, for drinks.  Once she got there, she proceeded to drink enough to score a .24 on the breathalyzer.  She was involved in a crash after leaving the restaurant, on her way home.


The ALJ upheld SAIF’s denial, reasoning that claimant’s injuries did not arise out of and in the course of her employment.  The Board noted, “Claimant’s injury occurred off the insured’s premises, approximately five hours after she had completed her work duties and left her work premises, and while driving her vehicle, presumably home, in an intoxicated state.”  The Board astutely determined that claimant was not “in the course” of her employment when she was injured.  It went on to declare, also, that her injury did not “arise out of” her employment.  It observed, “Here, we find that the risk of injury resulted from an MVA that occurred while driving home approximately four hours after she finished her work shift. * * * Regardless of the reason(s) that claimant went to the restaurant with her boss and coworkers after work, she was not exposed to the risk of the MVA, which occurred some four hours later and while driving home, by virtue of her employment.”  Affirmed


Court of Appeals Cases


Sandberg v. J.C. Penney Co. Inc., WCB No. 0702441; CA A140276 (June 1, 2011)


Here’s one for the ages….Claimant injured herself when she tripped over her dog while going to her garage to get material for some work she was doing at home.  The Board upheld the employer’s compensability denial, deciding that claimant’s injury did not “arise out of” her employment.  It did not make it to the second prong of the unitary employment relation test; i.e., whether the injury was sustained “in the course of” claimant’s employment.


The court stated its task as follows: “Thus, our focus is on whether claimant established a causal connection between her injury and her employment, that is, whether claimant’s injury resulted from a risk connected to either the nature of her work or her work environment.”  The court decided that claimant’s home was her workplace and that, while she regularly worked at home, she did so as a condition of her employment.  Therefore, any risks associated with her place of work were risks to be contemplated as arising out of her employment.  Apparently, this included tripping over her dog.  The court found that claimant’s injury arose out of her employment.  Because the Board never addressed the “in the course of” prong of the test, however, the court remanded the matter to the Board for further consideration.  Reversed & Remanded


Moral:  Don’t let people work at home