November 2006 SBH Quarterly Newsletter
PDF FormatOregon Court of Appeals WC Case Law Update
Court holds arthritis or an arthritic condition is inflammation of a
joint.
In Adam M. Karjalainen v. Curtis Johnson Pennywise, Inc., __ Or App __
(October 18, 2006), the court found it was a question of law as to
the presence of arthritis or an arthritic condition in a dispute over the
compensability of a disc herniation. The court found the dictionary defined
arthritis as inflammation of one or more joints. Evidently, there was no
evidence in the record that the disc herniation involved or resulted from
inflammation of a joint and the court concluded as a matter of law the
herniation did not involve arthritis or an arthritic condition, so a
combined condition analysis involving a preexisting arthritic condition did
not apply. When dealing with degenerative disc disease, always ask the
physician whether the condition involves inflammation of the facet joints.
Court changes definition of material as used in ORS 656.245.
In Mize v. Comcast Corp., Or App (October 11, 2006), the court
considered whether a claim accepted for medial meniscus tear was a material
contributing cause of the worker’s need for a second surgery. The worker had
a congenital anatomic configuration of his patella, which was the major
contributing cause of the need for surgery. The attending physician
testified that the injury was only a minor contributing factor. The court
defined material as a fact of consequence and thus a minor contribution may
be material. It is unknown whether the court will apply this definition of
material to other burdens of proof. It rejected arguments regarding the
definition of material in compensability cases and held they did not help in
discerning the meaning of “in material part” contained in ORS 656.245.
Consequently, there is hope the definition will be limited to medical
service claims.
Two prong test for evaluating whether a penalty is due when an insurer
fails to timely respond to a closure request from the worker.
The court reversed a penalty award and found the Board applied the wrong
standard in Red Robin Int’l v. Dombrosky, 207 Or App 476 (August 30,
2006). The insurer failed to respond to the worker’s claim closure
request within the 10-day period prescribed in ORS 656.268(5)(b). The court
concluded the Board cannot assess a penalty based on the sole fact the
carrier did not comply with the 10-day provision. The fact finder must first
determine whether the insurer refused to close the claim. If so, it must
determine if the refusal was unreasonable based on a factual inquiry into
the reasonableness of the insurer’s refusal to close under the circumstances
of the specific claim.
Time loss rate based on post injury collective bargaining agreement that
retroactively increased the worker’s hourly rate of pay.
The court determined a worker’s wage at the time of injury is not what the
worker actually received on the date of injury; rather, the amount is what
the worker was contractually entitled to receive on that date as a result of
a valid, operative, and binding agreement in United Airlines v.
Anderson, 207 Or App 493 (August 30, 2006). The fact the union and
employer were in negotiations at the time of the injury most likely led to
this decision.
Date of injury referenced in a Stipulation not binding on subsequent
litigation.
In Weyerhaeuser Co. v. Ellison, Or __ App (October 11, 2006),
the court held an approved Stipulation which agreed to accept and process an
occupational disease hearing loss claim did not preclude the worker from
requesting reconsideration of a Notice of Closure on the basis the insurer
used the wrong date of injury for calculation of permanent partial
disability benefits. The court reasoned the agreement only involved
acceptance and the insurer’s obligation to further process the claim. It
seems the court failed to consider the fact both parties agreed to the date
of injury contained in the caption of the settlement document.
Agreement to accept sprain/strain precluded insurer from subsequently
accepting a combined condition and issuing a preclosure current combined
condition denial.
Compared to the previous case, the court issued a conflicting opinion in
Richard Robuck v. SAIF, Or App (September 20, 2006). The court
held SAIF was precluded from issuing a combined acceptance and denial after
it agreed to accept a claim for lumbosacral strain/sprain. The acceptance
was issued pursuant to a stipulation purporting to settle “all issues raised
or raisable.” The court reasoned the compensability of the preexisting
degenerative condition had been raised by the worker in his initial claim
for benefits and by SAIF in its denial. Evidently, the original denial
contained language that the work injury combined with preexisting
conditions. Thus, it was an issue raised before the stipulation and
foreclosed by that stipulation from being raised again. This case is a
reminder that one needs to be very careful when drafting settlement
documents.
In order to be able to issue a preclosure current combined condition
denial, the injury must cease being the major contributing cause of the
combined condition after the effective date of the acceptance of the
combined condition.
In Oregon Drywall Systems, Inc. v. Bacon, Or App (September 27, 2006),
the insurer issued a modified acceptance that stated the combined condition
was accepted “as of this date” and then denied the combined condition within
a few days. There was no medical evidence the worker’s condition changed
during that time and no proof the injury ceased being the major contributing
cause between the date of the modified notice of acceptance and the denial.
The court rescinded the denial. The following rule applies: (1) When the
acceptance of the combined condition does not specify an effective date
different from the date of the original acceptance of the work-related
injury, the acceptance of the combined condition is deemed to supersede and
augment the initial acceptance and date of the original acceptance becomes
the baseline for evaluation of any changes in the medical condition; (2) If
the acceptance of the combined condition expressly refers to the date of
injury, the effective date of the acceptance is the date of injury and the
date of injury becomes the baseline; and (3) If the modified acceptance
expressly states a date, then that date becomes the baseline for evaluation
of a change in the condition.
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