Dr. Garber s DISPENSARY OF COUGH SYRUP, BUFFALO LOTION, PLEASANT PELLETS, PURGATIVE PECTORAL, SALVE & WORKERS COMPENSATION CASES

Transcription

1 Dr. Garber s DISPENSARY OF COUGH SYRUP, BUFFALO LOTION, PLEASANT PELLETS, PURGATIVE PECTORAL, SALVE & WORKERS COMPENSATION CASES Bradley G. Garber s Board Case Update: 08/04/2014 Russell W. Wayne, 66 Van Natta 1175 (2014) (ALJ Lipton) Claimant requested review of an Opinion & Order that declined to award penalties and fees for an alleged unreasonable refusal to close his cervical spine/head injury claim. Claimant sustained an injury that was accepted, by SAIF, for the condition of cervical strain. SAIF subsequently expanded the scope of claim acceptance to include the conditions of closed head injury and headaches/cephalgia secondary to contusion of the head. Based on an IME, SAIF closed claimant s claim. The closure awarded temporary disability and permanent disability benefits. Claimant, of course, requested 1

2 reconsideration. The Appellate Review Unit issued an Order on Reconsideration rescinding the Notice of Closure, finding that claimant was not, yet, medically stationary. After the Notice of Closure was set aside, claimant underwent surgery. A couple of months after that, claimant s attorney demanded that SAIF close the claim, pursuant to ORS (5)(b). SAIF issued a Notice of Refusal to Close, stating that additional information was needed to close the claim. It subsequently expanded the scope of claim acceptance to include the post-operative diagnosis. Claimant s attorney requested a hearing, challenging SAIF s refusal to close. She argued that SAIF s refusal to close the claim was unreasonable because it took no action to obtain the information that it needed to close the claim, in between March 2013 and June There are three predicates to the assessment of a penalty under ORS (5)(d): correctness of that action must be at issue in a hearing on the claim; and (3) there must be a finding that the notice of closure or the refusal to close was not reasonable. Cayton v. Safelite Glass Corp., 232 Or App 454, 460 (2009). In this case, the first two predicates were satisfied. It was up to the Board to determine whether the refusal to close was unreasonable. It wrote, as follows: Whether a refusal to close was unreasonable is determined on a case-by-case basis that must necessarily depend on the particular facts and circumstances of each case. Red Robin Int l v. Dombrosky, 207 Or App 476, 481 (2006); Oath Boun, 60 Van Natta 411, 415 (2008). In evaluating whether SAIF s refusal to close was unreasonable, we may consider all conduct that preceded claimant s closure request, as well as subsequent conduct. [citations omitted] The Board found that, even though claimant had not made a new/omitted condition claim for the condition that was the basis for claimant s post-closure surgery, SAIF acted appropriately in seeking information on the compensability of 2

3 that condition when claimant demanded claim closure and, therefore, had not acted unreasonably in refusing to close the claim when claimant demanded it. Therefore, no penalty and fee was warranted. Affirmed Michael F. Jones, 66 Van Natta 1192 (2014) (Order on Reconsideration) In this case, the Board was called upon to determine whether there was persuasive medical evidence in the record to establish that claimant suffered from a statutory preexisting condition under ORS (24). SAIF asserted that the medical evidence supported the proposition that claimant s degenerative disc conditions constituted arthritis or an arthritic condition, which was the major contributing cause of his disability or need for treatment of a combined L2-3 disc condition. SAIF relied upon the following, from Dr. Greenburg: The lumbar spine degenerative disease and related changes, including the L2-3 disk bulging, most likely pre-existed the work strain injury. The preexisting degenerative disease also includes arthritis, with the MRI identifying facet arthropathy and joint inflammation. While the strain injury at least initially combined with the lumbar spine degenerative conditions to provoke or exacerbate symptoms, the pre-existing degenerative conditions should be considered the major (>51%) contributor to the need for treatment of any such combined condition. The Board did not find this persuasive. It observed, as follows: Dr. Greenburg opined that claimant s preexisting degenerative disease included arthritis, with the MRI identifying facet arthropathy and joint inflammation. But he did not explain whether or not the L2-3 disc bulge itself included arthritis, facet arthropathy, or joint inflammation. The MRI report stated that there was [b]ilateral mild facet arthropathy in the lower lumbar spine, but the L2-3 facet 3

4 joints are normal. Neither Dr. Greenberg nor Dr. Wilson [who had concurred with Dr. Greenberg s report] explained what joints had inflammation or how they reached their conclusion. Affirmed NOTE: Even though a specific claim for an L2-3 disc bulge had been made, and all of the medical evidence generated was directed at that claimed condition, Dr. Greenberg had to explain that a particular facet joint, or arthropathy at a particular site in claimant s low back was the cause of claimant s disc bulge or low back symptoms. Vanetta Abdellatif, 66 Van Natta 1201 (2014) (ALJ Fulsher) The employer appealed an Opinion & Order that found claimant s right elbow injury non-compensable. At issue was whether claimant s injury arose out of and in the course of employment. Claimant works for a county as the Director of Integrated Clinical Services. More than 50 percent of her work time involves travel away from her office. After a meeting with one of the Boards on which she was a member, she fell off an unmarked curb at the parking facility in which she parked her car. The parking lot was not under the ownership or control of her employer. She fractured her elbow and had to undergo surgery. The ALJ set aside the employer s AOE/COE denial, finding that claimant s elbow injury arose out of and in the course of her employment. In so finding, the ALJ determined that claimant was a traveling employee. On review, the employer argued that claimant was injured after a meeting that was not connected to her work, that she was not a traveling employee, and that the going and coming rule applied, making the claim non-compensable. 4

5 The Board discussed the traveling employee exception to the going and coming rule, as follows: A traveling employee is considered to be continuously acting in the course of employment unless the employee has engaged in a distinct departure on a personal errand. SAIF v. Scardi, 218 Or App 403, 408 (2008); Sosnoski v. SAIF, 184 Or App 88, 93, rev den, 335 Or 114 (2002); Slaughter v. SAIF, 60 Or App 610 (1982). An activity is a distinct departure if it is not reasonably related to an employee s travel status; an employee s injury does not occur in the course of employment if the employee is engaged in an activity that is not reasonably related to the employee s travel status. Scardi, 218 Or App at 408. Morever, a traveling employee need not be actually working when injured for the injury to be compensable. See Sosnoski, 184 Or App at 93-95; see also PP&L v. Jacobson, 121 Or App 260, rev den, 317 Or 583 (1993)(when travel is part of employment, the risk of injury during activities necessitated by travel remains an incident to the employment even though the employee may not actually be working at the time of the injury). The Board went on to find that claimant was, in fact, a traveling employee when she was injured. Affirmed Tyrel Albert, 66 Van Natta 1212 (2014) (Order on Remand) This one was booted back to the Board after the Court of Appeals reversed and remanded the Order in Tyrel Albert, 63 Van Natta 2327 (2011). The Board had reversed an Opinion & Order that reversed an Order on Reconsideration s work disability award for a right knee condition and penalty assessment under ORS (5)(e). The Court concluded that the Board erred in basing its determination that claimant had not been released to his regular work, in part, on the Appellate Review Unit s reference to a Dictionary of Occupational Titles code and description. Instead, the Court directed the Board to determine whether claimant had, in fact, been released to his job-at-injury, based on medical records describing the work he was actually performing when he was injured, his own description of his work, his employer s Regular Duty Job Analysis, and the 5

6 evidence about his post-injury physical capacity. In short don t rely on a canned DOT description of some generalized job activity and requirements. Claimant was working for the U.S. Forestry Service as a crew member. He cleared and built trails, built fences and piled brush. He sustained an ACL tear and medial meniscus tear, at work. The claim was accepted. Before the claim was closed, claimant s AP signed a Regular Duty Job Analysis form prepared by the employer, which was intended to detail the physical requirements of the employee s regular job duties for review by the attending physician to determine whether the employee is able to return to the regular job. The insurer subsequently issued a Notice of Closure that awarded claimant a 6% whole person impairment award, but no work disability award. Claimant requested reconsideration. During the reconsideration process, claimant s counsel ran back to the AP and had him change his opinion with regard to claimant s return to regular work. Based on this change of opinion, the ARU awarded claimant a work disability award and assessed a 25% penalty against the employer on the increase in disability. The employer requested a hearing. After hearing, the ALJ reversed the Order on Reconsideration, reasoning that the AP s sudden change of opinion regarding his patient s work capacity was not persuasively explained. The ALJ reinstated the NOC. Claimant requested review. (This sounds like a tennis match) After review, the Board reversed the ALJ s decision and reinstated the 25% penalty. The Board describes the thought process, as follows: We reasoned that claimant s entitlement to work disability depended on whether his attending physician had released him to regular work, or, in other words, the 6

7 job the worker held at the time of injury. In that regard, we determined that Dr. Nonweiler [the AP] had not released claimant to regular work, notwithstanding his June 2010 approval of the Regular Duty Job Analysis. We noted, among other things, that the ARU had concluded that claimant was a forestry worker (DOT ) with a strength requirement of heavy, which is defined as the ability to frequently lift 50 pounds and occasionally lift 100 pounds. We expressed our agreement with the ARU s reasoning and concluded that claimant had not been released to regular work. Accordingly, we awarded work disability, concurring with the ARU s determination of the extent to which claimant was disabled. The Board went to reinstate the 25% penalty. Still not satisfied, claimant appealed the Order on Review to the Court of Appeals. The court determined that the Board erred in basing its determination had not been released to his regular work, in part, on the ARU s reference to the DOT Forestry Worker code and description. The court reasoned that the ARU s choice of that code, for purposes of calculating the amount of claimant s work disability benefit, was not evidence of his actual job duties before he was injured. Instead of relying on the ARU s conclusion about which DOT code best described claimant s pre-injury physical capacity, the court held that the Board should have determined whether claimant had been released to his at-injury job based on evidence in the record. The court remanded the matter to the Board. The Board, on remand, affirmed its prior Order with regard to the award of work disability, but reversed its position with regard to the assessment of a penalty under 7

8 ORS (5)(e), finding that the increase in permanent disability came about as a result of information that it could not have known about at the time of claim closure. Interestingly, claimant had requested judicial review, arguing that he was entitled to a greater work disability award. The Board disagreed, but because the employer argued that he was entitled to a lesser award, and lost on that issue, claimant s attorney was awarded a fee of $15,000 for defending against an attempt to reduce his award. Affirmed, in part; Reversed, in part. 8