Spring 2010 SBH Work Comp Quarterly
PDF FormatOregon Workers' Compensation: Oregon Court of Appeals Cases
PPD cannot be reduced in a Notice of Closure due to failure to follow physician’s advice. SAIF v. Vanbibber, 234 Or App 68 (2010). http://www.publications.ojd.state.or.us/A136922.htm
Facts: The claim was closed following a work-related back injury with an award of impairment but did not award work disability on the grounds his physician opined claimant would have been able to do his regular work if he had complied with the PT program.
Decision: The Court held an insurer was wrong by not awarding work disability despite the statement by the doctor.
Lesson: Insurer must award the work disability but then may appeal their closure and ask for reduction in benefits if a claimant's failure to follow physician’s advice would have reduced his PPD award.
A worker can file successive hearing loss claims against his employer even after an initial accepted claim for the same condition. Pilgrim v. Delta Airlines, 234 Or App 80 (2010). http://www.publications.ojd.state.or.us/A137246.htm
Facts: Claimant filed a hearing loss claim and was awarded 16% in 1996. He continued to work at the employer and filed another hearing loss claim for hearing loss incurred after 1996. The employer treated the claim as an Own Motion worsening claim. The ALJ and Board upheld the denial because claimant had not proven that hearing loss since 1996 was the major cause of his condition or of the worsening of the previous hearing loss before 1996. Claimant’s hearing loss was proven to be 16% since 1996.
Decision: The Court reversed and remanded the claim for acceptance. They reasoned that ORS 656.802(2)(a) applied and claimant need only show a series of work exposures caused the disease. There was no proof of a combined condition with the pre-1996 hearing loss or that the pre-1996 hearing loss itself was a worsened pre-existing condition. The Court stated ORS 656.802(2)(b) did not apply when the pre-existing disease and the worsening are both employment related. The only proof required by claimant is to show employment conditions are the major cause of the disease.
Lesson: Claimant has the burden of proving employment conditions are the major cause, regardless of prior accepted claim. Of interest, the OAR will allow apportionment/offset of the prior PPD award.
Worker not authorized to work in the USA not entitled to vocational assistance. Carreon v. Commerce & Industry Ins. and DCBS, 233 Or App 440 (2010), 226 P.3d 73 (2010). http://www.publications.ojd.state.or.us/A137651.htm
Facts: Claimant was compensably injured and her claim was closed with an award for permanent impairment. After the claim was closed, claimant was notified that she was ineligible for vocational assistance because she was not authorized to work in the United States.
Decision: A worker who is not authorized to work in the United States is not entitled to vocational assistance benefits. The worker argued OAR 436-120-0320(10)(a), a department rule stating a requirement that workers be "authorized to work in the United States" as a condition for vocational assistance, was contrary to statute and invalid. The court disagreed, noting that ORS 656.340(7) authorized the department to place "other conditions" on vocational assistance eligibility than those expressly stated in the statute.
Lesson: It is important to review all facts, including citizenship and green cards in determining eligibility for vocational services.
No penalty or fee if refusal to close or failure to respond timely to request to close was reasonable. Fitzsimonds v. MJ Hughes Construction, Inc., 233 Or App 447 (2010). http://www.publications.ojd.state.or.us/A138173.htm
Facts: Attending physician determined the compensable condition was medically stationary and asked employer to schedule a physical capacities evaluation (PCE) for claimant, which took place April 19, 2006. On April 24, 2006, claimant requested that a Notice of Closure be issued closing the claim. On May 1, 2006, employer's representative informed claimant that the claim would not close until claimant's attending physician had the opportunity to examine the evaluation. A Notice of Closure issued on May 25, 2006 after insurer discussed attending physician’s response to PCE exam.
Decision: The employer’s response that it was waiting for the attending physician’s review and concurrence with a PCE was reasonable. Accordingly, there was no award of penalties or attorney fees.
Lesson: Insurer’s action will be reviewed to determine if refusal to close was reasonable. Here, there was no written communication, but verbal response was deemed reasonable.
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