Board Case Update: 06/28/11

Carol D. Groleau, 63 Van Natta 1313 (2011)
(ALJ Fisher)
Claimant’s occupational disease claim for a low back condition was found compensable by Opinion & Order dated August 24, 2009.  The Order remanded the claim to the carrier for “acceptance and processing according to law.”  The O&O was affirmed by Order on Review dated February 16, 2010.  On June 22, 2010, claimant filed a request for hearing, seeking penalties and fees for the employer’s failure to formally accept the claim by Notice of Acceptance.  On November 3, 2010, the employer closed the claim and issued an “Updated Notice of Acceptance at Closure.”
After hearing, Judge Fisher declined to assess penalties and fees under ORS 656.262(11) because there were no amounts due on which to base a penalty.  In addition, the judge did not consider the employer’s conduct (or lack, thereof) to be unreasonable.  Claimant appealed.
On review, claimant argued that the employer acted unreasonable, per se, by not issuing an “Initial Notice of Acceptance” pursuant to OAR 436-060-0140(7).  The Board bought the argument, observing, “…OAR 436-060-0140(7) requires that the first acceptance must contain the title ‘Initial Notice of Acceptance.’”  Essentially, because the initial Notice of Acceptance contained the word “Updated” instead of “Initial,” the employer was determined to have engaged in conduct constituting an “unreasonable delay in the acceptance of a claim under ORS 656.262(11)(a).”  Therefore, Claimant’s attorney was awarded a penalty-related fee of $1,000.  Reversed, in part, affirmed in part.
Query:  What if, on November 2, the employer issued an “Initial” notice of acceptance and, then, on November 3, issued an “Updated” notice?
Willie L. Frison, 63 Van Natta 1331 ( 2011)
(ALJ Fisher)
Claimant requested review of an Opinion & Order that found the closure of his low back claim to not have been premature.  Initially, a low back strain was accepted and the claim was closed in 2007.  Then, Claimant made a claim for a “combined” condition.  SAIF accepted a lumbar strain combined with lumbar degenerative disc disease on March 3, 2010.  On the same date, it denied the combined condition, as the current condition was no longer related to the combined condition.  It reclosed the claim on March 17, 2010, without a PPD award.  Claimant requested reconsideration and the appointment of a medical arbiter.  After the medical arbiter exam, the closure was affirmed and the appellate review unit did not find the claim to have been prematurely closed.  Claimant requested a hearing.
In the interim, Claimant appealed the current/combined condition denial of March 17, 2010.  In a separate proceeding, another ALJ set aside that denial.  Claimant sought to introduce evidence of that proceeding into the appellate review unit record, arguing that the setting aside of the denial invalidated the Notice of Closure.  The Board did not allow that evidence into the record.  Instead, the Board concluded, “…[W]here, as here, a combined condition denial that formed the basis of a claim closure is subsequently set aside, we do not invalidate that claim closure; rather, the carrier must reopen the claim and, when appropriate, close that claim and rate any impairment for the combined condition.”  Affirmed
Petr P. Derlyuk, 63 Van Natta 1334 (2011)
(ALJ Kekauoha)
Claimant filed a claim for carpal tunnel syndrome (CTS), as the culmination of an occupational disease process.  Under ORS 656.802(2)(a), it was up to Claimant to show that employment conditions were the major contributing cause of his CTS.  Claimant relied upon the opinions of his attending physician, Dr. Kaiser.
Dr. Kaiser drew a distinction between median nerve compression (the pathology) and the symptoms of CTS (a syndrome or constellation of symptoms).  He stated, in terms of reasonable medical probability, that Claimant’s work activities were the major contributing cause of median nerve compression symptoms, but that the cause of the compression, itself, was unknown.  Importantly, Dr. Kaiser did not opine that, in the case of CTS, the symptoms are the disease.  His opinions were found to be insufficient to establish compensability.  Affirmed
Amendment to ORS 656.313 (effective January 1, 2012)
ORS 656.313(4), pertaining to settlements of disputed claims, was amended, as follows:
“* * * Reimbursement [for medical services] under this section shall not prevent a medical service provider or health insurance provider from recovering the balance of amounts owing for such services directly from the worker, unless the worker agrees to pay all medical service providers directly from the settlement proceeds the amount provided under ORS 656.248.
In other words, if, in a DCS, the medical providers are reimbursed in the audited amount allowed in ORS 656.248, the medical providers may not seek to recovery in excess of that amount.  This, obviously, is a protection for injured workers and applies only to those situations in which payment of outstanding medical bills are included in the terms of the DCS.