Spring 2008 SBH Quarterly Newsletter
PDF FormatOregon Workers' Compensation: Board Decisions
Beware of consequential condition claims following a current combined condition denial.
At issue before the Board was the compensability of claimant’s L5-S1 degenerative disc disease. The employer accepted “extruded disc, lumbosacral right L5-S1 combined with preexisting non-occupational degenerative disc disease of the lumbar spine.” Subsequently, asserting the major contributing cause of claimant’s medical treatment was due to his non-occupational lumbar degenerative disc disease, they issued a denial of compensability for the combined condition. The Board upheld the current combined condition denial, finding the compensable “extruded L5-S1 disc” had ceased being the major cause of the current combined condition. However, the Board then found the degenerative disc disease compensable as a consequential condition. The Board differentiated between the preexisting degenerative disc disease and degeneration that developed after the work injury. Therefore, if expansion requests are filed after a current combined condition denial, you will need to obtain medical opinions to address if there really is a new condition and whether it is compensable. Thomas McMackin, 60 Van Natta 467 (2008).
Carrier’s failure to seek necessary information to close claim in timely manner was unreasonable in light of worker's request for claim closure.
This recent WCB case is a reminder to act promptly upon receipt of request for claim closure. The request for closure was not initially processed because the claim had been recently transferred to another claims adjuster. The request went to the former adjuster and was not forwarded to the new adjuster. The Board rejected the argument that the carrier had not “refused” to close the claim because it kept processing the claim to closure. The Board also rejected the argument that its refusal was not unreasonable. While seemingly agreeing that permanent work restrictions needed yet to be outlined at the time the worker made the request for closure, the Board disagreed the carrier worked reasonably to gather that information. It cited an almost three month gap before the adjuster asked the attending physician about the restrictions. The Board found this delay unreasonable and assessed a penalty. Oath Boun, 60 Van Natta 411 (2008).
Unless there is a stipulation to amount of costs, worker needs to submit a cost bill to insurer.
If the worker finally prevails against a denial under ORS 656.386(1), the worker may be awarded reimbursement of reasonable expenses and costs for records, expert opinions and witness fees incurred in litigation after January 2008. The parties can stipulate to the specific amount of the reasonable costs, which will then be published in the order. Otherwise, the worker needs to file a cost bill with the insurer. A party can file a request for hearing if there is a dispute regarding the costs. Absent a request for hearing, neither the Board nor the ALJ can award a specific amount in costs unless both parties stipulate to the amount. John Leeper, 60 Van Natta 407 (2008).
ER physician signature on 827 does not perfect aggravation claim due to new rules regarding attending physician.
The worker sought treatment in the ER after claim closure. The ER physician signed the Form 827. SAIF declined to reopen the claim, arguing the aggravation form was not signed by the attending physician. To perfect an aggravation claim, it must be signed by the worker or the worker’s representative and the attending physician. ORS 656.273(3). The Board looks to the record as a whole to determine who was primarily responsible for the treatment of the worker’s injury. Merely treating the worker in an ER or signing an 827 does not evidence an AP relationship. Effective 1/1/08, ORS 656.005(12)(c) excludes from the definition of "attending physician," a physician who provides care in a ER and refers the worker to a primary care physician for follow-up care and treatment. In this case, the ER physician only treated in the ER and so was not qualified as attending physician. Corwin G. Merritt, 60 Van Natta 603 (2008).
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