Fall 2008 SBH Quarterly Newsletter
PDF FormatOregon Workers' Compensation Board Decisions
Control of premises is key in determining compensability for injuries that occur while going to or coming from work.
Generally, injuries that occur going to or coming from work, including during lunch breaks, are not compensable. Recently, the Board has been examining the employer's control of the premises to determine whether the injury that occurred "going to or coming from work" is compensable. In Theresa Noble, 60 Van Natta 880 (2008), the Board found a worker's injury, which occurred during a personal errand on a paid break, was compensable because the record established the area in which the worker was injured was controlled by her employer. In accordance with the employer control of premises test (Naomi R. Pierce, 60 Van Natta 2420 (September 15, 2008)), the Board found the worker's injury sustained during her lunch break did not occur in an area controlled by her employer. Consequently, the Board concluded the worker's injury did not arise out of and in the course of her employment.
Only stay compensation you have contested.
The Board awarded penalties and attorney fees for unreasonable withholding of compensation for a carrier's stay of payment of PPD award while on appeal. The Board found the carrier was entitled to stay the payment of the increased PPD granted by the Order on Reconsideration pending its appeal of that order. Nevertheless, the Board concluded that, because the carrier had not requested reconsideration of the Notice of Closure (NOC), it was not authorized to stay the payment of the uncontested PPD granted by the NOC. Even if a NOC is on appeal, you will need to determine if payment is proper. Ricky S. Beckerman, 60 Van Natta 2460 (September 19, 2008).
Need to meet all requirements for TTD in Own Motion claim for new/omitted condition.
The saying "the devil is in the details" certainly applies to Own Motion claims. Recently, the Board held the worker was not entitled to TTD despite authorization from her attending physician because of a missing "detail." The Board held that, although she was prescribed curative treatment, it was not prescribed in lieu of hospitalization necessary to enable her to return to work, and she was not entitled to TTD benefits based on her previously reopened Own Motion claim. The Board agreed the statutory requirement for the payment of TTD benefits had not been satisfied. Belinda A. Butcher, 60 Van Natta 2173 (August 21, 2008).
Strict compliance with the rules is mandatory when administratively closing claims.
We have all felt the frustration when a worker fails to seek treatment and prolongs a workers' compensation claim. To have these claims closed, strict compliance with the rules governing closure is required. The Board has held a closure was premature because a carrier had not sent a copy of its "failure to seek treatment" warning letter to the worker's attending physician before closing the claim. The warning letter was sent to the neurosurgeon, but not the attending physician who recently took on the role of attending physician. Therefore, when issuing warning letters, be certain you copy the attending physician of record. Mark Miller, 60 Van Natta 2157 (August 21, 2008); OAR 436-030-0034(6).
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