Board Case Update: 09/07/11

Shawna L. Cooley, 63 Van Natta 1667 (2011)

(ALJ Mills)


Claimant was injured in March 2010.  In April, she was notified that her care would be managed by an MCO.  A “Dr. Borden” became claimant’s attending physician.  He took claimant off work on September 21, 2010.  Claimant was scheduled for follow-up on October 11, 2010.  On September 24, the MCO notified Dr. Borden that it had determined that claimant should be treated by a physical medicine specialist and rehabilitation specialist.  It advised Dr. Borden that his services would, no longer, be paid for.  Claimant requested Director review of the MCO decision.


When Claimant returned to Dr. Borden, on October 11, Dr. Borden continued her off-work status through November 16, 2010.  Claimant next went to MCO-approved physician, “Dr. Tran.”  Dr. Tran saw claimant on November 30, 2010.  He placed Claimant on modified duty work.


The employer paid TTD, based on Dr. Borden’s authorization, from September 21 to October 2.  It did not pay anything more until Dr. Tran placed claimant back on time loss.  Claimant requested a hearing.


Employer alleged that the Hearings Division did not have jurisdiction over the dispute while the medical service issue was before the Department.  The ALJ agreed and dismissed claimant’s request for hearing.  On review, the Board disagreed, finding that claimant’s substantive entitlement to time loss benefits, from October 2 to November 29, presented a “matter concerning a claim” under ORS 656.704(1), and that the Hearings Division had jurisdiction to decide the issue.


It went on to award claimant time loss benefits for the period in question, observing, as follows:


“* * * While the MCO subsequently notified Dr. Borden and claimant on September 24, 2010 that Dr. Borden’s ‘treatment’ would not be compensable beyond seven days from the date of the letter (October 1, 2010), Dr. Borden was an attending physician when he authorized temporary disability on September 21, 2010.  That authorization continued until October 11, 2010, when claimant returned to Dr. Borden.”  Reversed



Just because the doctor is removed, doesn’t mean the authorization is.



Rudy L. Giorgetti, 63 Van Natta 1674 ( 2011)

(Own Motion Order)


Claimant requested reopening of his claim under the Board’s “own motion” (ORS 656.278).  The self-insured employer recommended against reopening, contending that claimant was not in the work force at the time of disability.


Pursuant to ORS 656.278(1)(a), one of the requirements for the reopening of an Own Motion claim for a worsening of a compensable injury is that the worker must be in the “work force” at the time of disability.


The Board noted that, in a situation where work force status is challenged, a claimant must produce evidence, such as copies of paycheck stubs, income tax forms, unemployment compensation records, a list of employers where the claimant has looked for work, letters from prospective employers, or proof that a search for work would be futile.  See Stuart T. Valley, 55 Van Natta 475 (2003).  In this case, claimant produce none of this evidence.  Reopening denied



Stanley V. Burch, 63 Van Natta 1732 (2011)

(ALJ Mundorff)


The self-insured employer denied claimant’s claim on the basis that he was not a “subject worker” under the Act. ORS 656.005(30).  Claimant requested a hearing.


Claimant was a union truck driver.  His job required him to maintain a current commercial driver’s license (CDL).  This, in turn, required him to take biannual physical DOT examinations.  On September 18, 2009, claimant was laid off due to economic reasons.  He did not work for anyone during the layoff period.  In May of 2010,  he was asked to come back to work.  In order to do that, he had to undergo a DOT examination.  While he was engaged in the physical examination, he injured his ankle.  He filed a claim for benefits.  The claim was denied.


In upholding the employer’s denial, the ALJ found that claimant was not a “worker” under the Act.  Although claimant was under the direction and control of the employer when he was injured, he was not providing services for remuneration.  In other words, claimant was not employed by the employer when he was injured.  The Board found that the “pre-employment” testing cases applied.  See Dykes v. SAIF, 47 Or App 187 (1980) and BBC Brown Boveri v. Lusk, 108 Or App 623 (1991).  Affirmed


Moral:  Attempting to meet the qualifications of a job doesn’t mean you have the job.