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

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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: 03/012/2015 Wesley A. Canfield, 67 Van Natta 381 (2015) (ALJ Fisher) SAIF requested review of that portion of the Opinion & Order that set aside its denial of claimant s right leg injury claim. The issue was course and scope. Claimant works as a parts handler for the employer. While walking to his car, at the end of his work day, claimant s knee gave out and he fell, injuring his right knee. He looked around and saw a crack in the sidewalk. AH-HAH!! SAIF denied the compensability of the claim, asserting that the injury did not arise out of and in the course of employment. Claimant argued, at hearing, that the 1

2 employer was in control of the premises and that, because the walkway exposed him to injury, his injury was compensable. The ALJ bought it. Claimant testified that he fell when his knee gave out. There was no indication that he tripped or stumbled. The crack in the sidewalk was not involved. Under the circumstances, the Board concluded that claimant s knee injury was not the product of a risk connected with the nature of the work or a risk to which the work environment exposed [him]. There was no causal connection between claimant s fall and the infamous crack in the sidewalk. Reversed Mauricio Cabrera-Vargas, 67 Van Natta 397 (2015) (ALJ Brown) SAIF denied the compensability of claimant s current combined L4-5 disc protrusion condition. It also denied the compensability of claimant s occupational disease claim for his low back condition. The ALJ found that claimant had not timely requested a hearing from the first denial, and upheld the second denial. Claimant requested review. SAIF accepted claimant s injury claim for the condition of lumbar strain. On March 9, 2012, the attending physician declared claimant medically stationary. The Notice of Closure of March 26, 2012 did not award any permanent disability. It is not clear, from the Order on Reconsideration, when claimant filed an occupational disease claim for lumbosacral degenerative arthritis at L4-5, but that condition was denied by SAIF on August 3, On August 20, 2012, SAIF amended its claim acceptance to include an L4-5 disc protrusion and L5 radiculopathy combined with preexisting L4-5 degenerative disc disease. In the same document, SAIF denied the combined condition, asserting that, as of May 9, 2

3 2012, the accepted L4-5 disc protrusion no longer constituted the major contributing cause of the combined condition. On October 1, 2012 (just under the deadline), claimant s attorney requested a hearing contesting the August 3 denial and any outstanding denials, order or decisions. The cover letter accompanying the request for hearing only referenced the August 3 denial. In other words, claimant s attorney did not, expressly and specifically, request a hearing from the August 20 combined condition denial. Finding that the request for hearing only specifically addressed the August 3 denial, the ALJ agreed that the request for hearing did not encompass the August 20 denial. The ALJ went on to find that the medical evidence did not support compensability of an occupational disease claim and, so, affirmed SAIF s August 3 denial. On review the Board determined that claimant s counsel s October 1 request for hearing constituted an appeal of the August 20 denial. The Board observed, as follows: Under ORS (1), a claimant has an obligation to request a hearing in response to each denied claim. Naught v. Gamble, Ind., 87 Or App 145 (1987). In other words, a request for hearing must be referable to a particular denial. Guerra v. SAIF, 111 Or App 579, 584 (1992). To determine whether a hearing request is referable to a particular denial, we consider the request itself, read as a whole and in the context in which it was submitted. Kevin C. O Brien, 44 Van Natta 2587, 2588 (1992), recons, 45 Van Natta 97 (1993). In spite of the fact that the claimant s request for hearing only mentioned the August 3 denial, the Board found that claimant had requested a hearing from the August 20 denial by stating, in the cover letter that accompanied the request, that claimant was appealing any outstanding denials. So, the Board found that 3

4 claimant timely appealed the August 3 denial. It went on, however, to uphold both the August 3 and August 20 denials. Vacated, in part, and Affirmed, in part BUT: In footnotes on pages 3 and 8 of its decision, the Board noted that, in another review, under another WCB No., it found claimant s new/omitted condition claim for an L4-5 disc herniation compensable. So, you win some, and lose some. Christina Song, 67 Van Natta 445 (2015) (ALJ Pardington) Claimant requested review on an Opinion & Order that declined to assess a penalty under ORS (5)(d) for an alleged unreasonable Notice of Closure and declined to award attorney fees under ORS (1) for unreasonable claim processing. Claimant s claim was accepted for occupationally induced asthma due to acute exposure. The attending physician was Dr. Clark; the IME physician was Dr. Keppel. Claimant underwent a closing IME by Dr. Keppel, and Dr. Clark concurred with Dr. Keppel s report. The claim was closed, based on Dr. Keppel s finding, on August 14, Claimant was awarded 3% whole person permanent impairment and 5% work disability. She sought reconsideration. After requesting reconsideration, claimant ran out and obtained some clarifying reports from Drs Keppel and Clark that resulted in increases in claimant s whole person and work disability awards. Claimant then filed a request for hearing, seeking penalties and fees. ORS (5)(d) provides for a penalty if: (1) there was a closure of a claim or refusal to close a claim; (2) the correctness of that closure was at issue in a hearing on the claim; and (3) there is a finding that the notice of closure or refusal to close was not reasonable. Cayton v. Safelite Glass Corp., 232 Or App 454, 460 (2009); David J. Morley, 4

5 66 Van Natta 2052, 2055 (2014). A claimant who is seeking a penalty under ORS (5)(d) for an unreasonable closure must request a hearing on the Order on Reconsideration to the correctness of the closure at issue in the hearing. See Warren D. Duffour, 65 Van Natta 1744, 1745 (2013). The pivotal question is whether the Notice of Closure was reasonable. See Kerry K. Hagen, 64 Van Natta 316, 319 (2012)(ORS (5)(d) provides for a penalty for an unreasonable Notice of Closure award). The reasonableness of the Notice of Closure must be evaluated based on the information available to the carrier at the time of claim closure, not on evidence generated after claim closure. The Board found that the insurer had enough information upon which to close the claim and did not need to seek the clarification that was subsequently sought by claimant s attorney. If, on the other hand, the insurer could have reasonably known of the information generated after claim closure, before it closed the claim, closure may have been found unreasonable. But, that would justify a penalty under ORS (5)(e), not ORS (5)(d), the section under which claimant s attorney sought a penalty. Because there was no basis for a penalty, there was no basis for a penalty-related fee. Affirmed (Member Weddell, of course, dissented) 5