Board Case Update: 07/25/11

Paul Spradlin, 63 Van Natta 1447 (2011)

(ALJ Wren)


Claimant sustained a compensable cervical spine and lumbar spine injury on March 9, 2009.  On March 9, 2010, the scope of claim acceptance was expanded to include a left wrist strain.  SAIF enrolled Claimant in a managed care organization (MCO).  Dr. Carrell requested authorization to perform diagnostic right shoulder, bilateral knee and bilateral foot imaging.  The MCO denied the request.  Claimant requested a hearing.


The ALJ determined that the proposed medical services were not directed at an accepted condition, so he upheld the denial of authorization.  The judge relied on a prior Board order that held that, for the purposes of establishing the compensability of medical services “for” an “ordinary” condition under the first sentence of ORS 656.245(1)(a), the treatment must be necessitated, in material part, by the “compensable injury,” which is the condition previously accepted.  See Cameron C. Horner, 62 Van Natta 2904 (2010).


The Board, on review, ignored its holding in Horner and found the “diagnostic” imaging to be compensable.  It found that the proposed imaging studies were intended to explore the full extent of Claimant’s injuries and did not have to be specifically tied to what had already been accepted.  Dr. Carrell’s witch hunt was allowed to proceed.  Reversed; $8,000 AF



Nichole M. Robinson, 63 Van Natta 1475 ( 2011)

(ALJ Lipton)


Claimant was injured on September 30, 2008 and the employer accepted a lumbar strain.  The claim was processed to closure on April 23, 2010.  Claimant received no PPD award.  She requested reconsideration.  Pending reconsideration, Claimant’s attorney asked the insurer to accept a lumbosacral strain.  After procuring medical evidence that the conditions were synonymous, the insurer wrote to Claimant and advised her that it would not be modifying its Notice of Acceptance.  Claimant requested a hearing from a “defacto” denial.


After hearing, the ALJ upheld the alleged denial, because Claimant had presented no medical evidence that she suffered from a lumbosacral strain.   The judge, however, found that claim processing had been unreasonable and awarded Claimant’s attorney a $1,000 fee under ORS 656.262(11)(a).  The employer appealed.


The Board found that, in fact, the claim had been unreasonably processed and it affirmed the $1,000 penalty-related attorney fee.  It then went one step further and found the lumbosacral strain to be compensable and, therefore, that the alleged defacto denial should be set aside.  Claimant’s attorney was awarded a $6,000 attorney fee.  Affirmed in part, reversed in part


WARNING:  This holding encourages claimant’s (and their attorneys) to file claims for “new” conditions based on terminology and not medical evidence.  Because Claimant’s attorney called the accepted lumbar strain something different, the Board treated it as something “new” under ORS 656.262(7)(a)



Stephanie M. Parshall, 63 Van Natta 1483 (2011)

(ALJ Poland)


The employer requested review of an Opinion & Order that awarded Claimant work disability for her low back condition.  The Order on Reconsideration did not award any work disability because the attending physician released Claimant to her regular work.


The employer accepted an occupational disease claim for L5-S1 degenerative joint disease, degenerative disc disease and disc herniation.  It eventually sent Claimant to an IME with a Dr. Curcin.  Dr. Curcin found Claimant medically stationary with impairment equal to 9 percent, and capable of returning to her regular employment.  Claimant’s attending physician, Dr. Suarez, concurred with the closing examination report.


Claimant requested reconsideration of the Notice of Closure and, pending reconsideration, secured a report from Dr. Curcin that, after examining Claimant’s job description and a December 2007 functional capacity evaluation, he would not release Claimant to her job-at-injury.  Dr. Suarez did not concur with that report.


The ALJ determined that, because of Dr. Curcin’s pronouncement, Claimant should be entitled to an award for work disability, in addition to whole person impairment.  The employer appealed.  On review, the Board held that only the attending physician could “release” an injured worker to regular or modified work.  Dr. Suarez was Claimant’s attending physician, not Dr. Curcin.  Because Dr. Suarez had previously released Claimant to regular work, through his concurrence with Dr. Curcin’s IME report, and had not changed that opinion, the Board relied on Dr. Suarez and not Dr. Curcin.  Reversed


Court of Appeals Case


Kelly v. Smith, 0702027, 0607776, 0603159; A144385 (June 29, 2011)


This an occupational disease case, in which the Last Injurious Exposure Rule (LIER) was applied to find JH Kelly, Inc., responsible for Claimant’s carpal tunnel syndrome condition.


There was no dispute about the compensability of Claimant’s CTS condition.  The dispute was over responsibility.  JH Kelly was Claimant’s last employer, so the burden was on that employer to prove that Claimant’s six-month’s worth of exposure at that employment contributed to Claimant’s pathology.  On appeal, JH Kelly argued that Claimant failed to prove that he suffered and actual, identifiable, measurable contribution to his pathology, as a result of his employment with that employer.  The Court held that Claimant’s burden of proof was not that high.  Instead, it held that someone in Claimant’s position only need prove that employment activities “contributed slightly to the worsening” of the condition.  In other words, any teeny weeny contribution is enough.  Affirmed


Moral:  If you’re last in line, spring for the surgery or settle the case


2011 Legislative Summary


House Bill 2094


This bill, effective Jan. 1, 2012, allows the reconsideration process to be deferred for 45 days, to allow for possible settlement of claims.  If the parties fail to reach an agreement in 45 days, the reconsideration process resumes.  PPD payments continue through the 45-day negotiation period.


House Bill 2743


This bill, effective Jan. 1, 2012, allows podiatrists to act as “attending physicians.”


House Bill 173


This bill, effective Jan. 1, 2012, allows a worker to pay a higher percentage of outstanding medical bills out of the proceeds of a settlement, instead of the current 40% limit.  Medical bills can be paid at 100% of the workers’ compensation fee schedule, instead of the current 50%, and medical providers will have to accept that amount as full payment.


For information on other workers’ compensation-related bills that will go into effect in 2012, go to: