Fall 2007 SBH Quarterly Newsletter
PDF FormatOregon Workers' Compensation: Board Decisions
Request clarification from attending physicians regarding time loss authorizations when there is any ambiguity.
In Steven R. Holmes, 59 Van Natta 1989 (2007), the Board found claimant's attending physician had noted claimant's "severe depression" was interfering with his ability to work and recommended follow-up with his primary care physician in three to four weeks to obtain a refill of his prescribed medications. Applying the Lederer standard, the Board determined an objectively reasonable carrier would interpret claimant's attending physician's report as a time loss authorization. Moreover, the Board did not consider the attending physician's reference to a three to four week "follow-up" period with a new primary care physician to be a cessation of the attending physician's time loss authorization. Considering the attending physician's description of a "severe depression" interfering with claimant's ability to work with the hope the prescribed medications would enable claimant to "hold down a useful job" in the future, the Board reasoned the attending physician's comments were more supportive of an "open-ended" time loss authorization. Finally, even if the attending physician had subsequently ceased providing care to claimant, the Board determined claimant remained entitled to TTD benefits pursuant to the attending physician's "open-ended" time loss authorization.
For treatment noncompliance resulting in an increased permanent impairment award, you need to know where to go to seek a reduction.
If you have a claim where claimant is noncompliant with treatment recommendations that results in increased permanent impairment, you can seek a reduction of the PPD award. If the noncompliance is for the compensable condition, only the Director has authority to lower an award. See ORS 656.325 (2); OAR 436-060-0150(14). If the noncompliance is for treatment of a preexisting condition, a reduction can be sought through the WCB. Dale E. VanBibber, Jr., 59 Van Natta 2174 (2007).
Notice of a work accident but not filing a claim is all that is needed for a timely claim.
The Board held claimant was not time barred from obtaining his workers’ compensation benefits when he filed his claim 17 months after the incident. The Board held that timely notice of the work accident is all that is required and claimant was not required to file a claim within the one-year timeframe. Jose Amador, 59 Van Natta 2115 (2007).
Compensability of idiopathic falls continues to be difficult to assess.
After experiencing an idiopathic syncopal episode, claimant fell off her high, barstool-like chair, landed on a hard linoleum surface, and sustained a facial fracture and closed head injury. An engineer testified that the force generated on claimant’s head at impact was 1.5 to 2.1 times greater for her office chair vs. a standard office chair. The parties agreed the fracture was in the course of employment but disputed whether it arose out of employment. The Board held it did because the risk of injury arose from a risk to which the work environment exposed the worker. This was a "mixed risk," involving a personal cause and an employment cause combining to produce harm, and employment was a contributing cause. Because the "course of” prong was strongly satisfied, the "arising out of " prong need only be minimally satisfied. The dissent argued that a lower chair and padded surface could have reduced the severity of the injuries, but a higher chair and hard surface did not increase the risk of injury beyond what claimant would have encountered walking in the office or walking outside. Violet Colhour, 59 Van Natta 1116 (2007).
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