May 2007 SBH Quarterly Newsletter
PDF FormatOregon WC Claims: Workers' Compensation Board
A current condition DCS does not preclude compensability of future expansion requests in accepted claim when not mentioned in the DCS document.
When settling claims on a global settlement that include a current condition denial and Claim Disposition Agreement, it is helpful to bring in other claims as part of the settlement to provide more certainty regarding future processing.
Claimant had an accepted 1998 right shoulder claim referenced in a 2002 DCS. The DCS also referenced claimant’s, then current, right shoulder adhesive capsulitis and impingement syndrome. However, claimant had an accepted 1988 low back claim, which was NOT referenced in the 2002 current condition DCS. After the DCS was approved, claimant sought treatment for her low back condition under Own Motion. The Board held there was no bona fide dispute over compensability of the low back at the time of the 2002 DCS and therefore no preclusive effect to prevent the expansion request. Felix R. Sanchez, 59 Van Natta 524 (2007).
No obligation to pay interim compensation for pending Own Motion claim reopenings or unperfected, omitted conditions.
Generally, interim compensation must be paid when the worker is not able to perform regular work and the claim is in “deferred” status. Exceptions exist for Own Motion claims and unperfected, omitted condition claims.
Claimant requested a variety of relief, including interim compensation pending acceptance of his Own Motion claim. The Board reaffirmed interim compensation was not available in an Own Motion claim. Joseph D. Hapka, 59 Van Natta 214 (2007).
The Board also upheld that no interim compensation was due for unperfected, omitted condition claims. On December 2, 2005, claimant requested acceptance of left shoulder rotator cuff tear and SLAP lesion as omitted conditions but argued he should have been paid interim compensation from November 21, 2003 to October 28, 2004 as timeloss was authorized for these conditions at that time. The Board held that interim compensation was not due before a formal claim was made. David L. Cross, 59 Van Natta 191 (2007).
Treatment in lieu of hospitalization (not just in lieu of surgery) needed to qualify for Own Motion benefits.
Own Motion reopening for a worsened condition under ORS 656.278 requires, among other things, hospitalization, surgery (inpatient or out patient) or other curative treatment prescribed in lieu of hospitalization necessary to enable the worker to return to work. Here, the Board determined that proposed steroid injections for right knee degenerative arthritis made in “lieu of surgery” did not qualify for reopening because the injections were not requested “in lieu of hospitalization” as required by statute. Daren Johnson, 59 Van Natta 687 (2007).
Job description should be clearly identified in cases where claimant moves between two similar, but different, jobs and included in the reconsideration record.
As they say, the devil is in the details. This saying certainly applies to claim closure and the reconsideration process. When closing claims, it is imperative to have all records made part of the reconsideration record, as well as clearly identify concurrences from physicians.
The Board upheld SAIF’s appeal of a permanent partial disability (PTD) determination. The claim was reclosed after an expansion request with 6% PPD for a low back condition. The Order on Reconsideration affirmed closure. At hearing, the award was increased to 31%, as claimant had not returned to her job-at-injury or been released to return to that job and was thus entitled to an evaluation of social/vocational factors. Permanent disability is rated as of the date of the Order on Reconsideration. Claimant’s job-at-injury was a cook’s assistant. Later, she worked as a cook. Although the attending physician released claimant to “regular job duties,” the job description he reviewed was not made part of the official reconsideration record. Therefore, claimant was awarded the greater base functional capacity and received a larger PPD award. Rosalia B. Cordova, 59 Van Natta 646 (2007).
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