January 2007 SBH Quarterly Newsletter
PDF FormatOregon WC Case Law Update
Notice of overpayment was found to qualify as unreasonable resistance to
the payment of compensation.
It is counter-intuitive to think an overpayment notice to claimant could be
held as an unreasonable resistance to payment of compensation, but the Board
found otherwise in this case. A Notice of Closure did not award TTD for
02/11/05 to 07/13/05 even though benefits had been paid from 12/09/04 to
08/31/05. The insurer performed an audit and notified claimant of an
overpayment. Claimant challenged the overpayment and the insurer defended on
the basis no attorney fees were due because the timeloss benefits that were
the basis of the overpayment had been paid prior to the NOC. The Board found
that the overpayment letter could have resulted in money being returned by
claimant or created offsets being available against future TTD or PPD awards
and therefore constituted resistance to payment of compensation under ORS
656.382(1). Justin D. Rhodes, 58 Van Natta 3011 (2006).
IME physicians must provide detailed medical and claimant-specific
rationales to be found persuasive.
Asking IME physicians to examine a worker and review prior medical records
is not enough to create a persuasive medical opinion. The physicians cannot
rely upon generalized knowledge but must address the specificity of the case
at hand in order to prevail on a contested denial. The following case
highlights the need for detailed IME reports.
Claimant was a housekeeper for 25 years when she filed an occupational
disease claim for CTS. The attending physician addressed how the nine
tendons in the carpal tunnel move with hand use and compared the hours
worked per day versus off-the-job activities. The IME physicians discussed
general factors such as gender, age, genetics, wrist size and smoking, but
they failed to particularize the data to the claimant before concluding
idiopathic etiology. In particular, the IME physicians did not provide a
reason claimant's type of work activity could not cause her CTS.
Ask IME physicians to address all adverse causation opinions on a
point-by-point basis to overcome a treating physician’s opinion by relying
on reasoning and specificity to the worker. Lea C. Covey, 58 Van
Natta 2920 (2006).
The Board will only look at medical evidence in existence on the date TTD
was terminated.
Dotting all the i's and crossing all the t's is paramount in terminating TTD
on an open claim. The Board furthered the strict rules by only reviewing the
medical evidence in existence at the time TTD was terminated.
Here, the attending physician approved a specific modified job during August
2004. Claimant began work at the modified job on 08/14/04. He was terminated
for disciplinary rule violation 12/08/04. Claimant was then provided with a
modified work release 12/12/04 after undergoing surgery 12/08/04. Time loss
was paid from 12/08/04 - 12/28/04 and then stopped due to a new release to
modified work. The Board held the reauthorization of temporary disability
post-surgery created a new need by the employer to pay TTD that could only
be reduced or terminated by attending physician reapproval of a new modified
job. Despite no changes in claimant's work restrictions, they would not
imply continued ability to perform the same job even when the attending
physician approved the same job by concurrence letter of April 2005. James
G. Botsford, 58 Van Natta 3069 (2006).
In combined condition injury cases, beware of conceding an "otherwise
compensable injury" within the context of opinions that do not support a
combined condition.
Combined conditions continue to be difficult to process and the case law is
wrought with ambiguity. This case involved an expansion request for annular
injuries at C6-7 and L4-5 for accepted cervical thoracic and lumbar
conditions. Conceding there was an "otherwise compensable injury," the
carrier relied on IME findings that the requested conditions were unrelated
to the work injury to support their argument the "otherwise compensable
injury" was not the major cause of disability or the need for treatment of
the combined condition. The Board held the IME physicians were more
persuasive than the attending physician, even though the IME did not find a
combined condition.
The dissent distinguished earlier case law of Coleman v. SAIF, 203 Or App
442 (2005) that allowed reliance on an opinion of no combination because
that case did not involve a concession of an "otherwise compensable injury."
We may have to wait for the Court of Appeals to settle this matter; in the
meantime, think twice before conceding an "otherwise compensable injury."
Yakov Funk, 58 Van Natta 3033 (2006).
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