Spring 2010 SBH Work Comp Quarterly
PDF FormatOregon Workers' Compensation: Oregon Workers’ Compensation Board Cases
End stage osteoarthritis viewed as new condition. Date of injury based on treatment for this new condition. Timothy R. Hanscam, 62 Van Natta 228 (2010). http://www.cbs.state.or.us/external/wcb/2010/review/jan/0900239c.pdf
Facts: In 1987 and 1988, claimant had arthroscopic knee surgery (each knee). In 2005, he again sought treatment for both knees and was deemed a candidate for total knee replacement. Dr. Bowman said the 1987-1988 treatment was for idiopathic arthritis, but he now had end stage osteoarthritis caused, in major part, by a lifetime of work activities, including work for SAIF’s insured from 2000 to 2005. SAIF was found responsible for an occupational disease per the last injurious exposure rule and closed the claim based on a date of injury in 1988.
Decision: The Board concluded the date of injury was in 2005 because, per Reynoldson v. Multnomah County, 189 Or App 327, rev den, 336 Or 192 (2003), the first treatment for end stage osteoarthritis was in 2005, rather than in 1988. An Order on Reconsideration used 2005 as the date of injury, which resulted in an increase of more than 25% of the value due to the change in the PPD rate and a penalty.
Lesson: The date of an occupational disease claim is determined by the date of initial treatment of the compensable condition.
Time loss awarded in spite of combined condition denial; Awarded for remaining compensable condition. Sheryl J. Otwell, 62 Van Natta 234 (2010). http://www.cbs.state.or.us/external/wcb/2010/review/jan/0901009a.pdf
Facts: Following a July 30, 2007 injury, SAIF accepted left L4-5 disc herniation combined with pre-existing DDD at L4-5 and L5 radiculopathy combined with preexisting DDD at L4-5. On December 4, 2008, SAIF denied the current combined condition as of July 5, 2008. Claimant appealed. On December 18, 2008, SAIF issued a NOC awarding temporary disability for various periods through July 5, 2008. An Order on Reconsideration awarded temporary disability for various periods through October 15, 2008, when claimant was deemed stationary. ALJ affirmed. SAIF contested entitlement to temporary disability as of July 5, 2008.
Decision: The Board awarded temporary disability through August 1, 2008. The additional disability was attributable to the accepted portion of the claim, i.e. the L4-5 disc herniation and L5 radiculopathy, which was responsible for causing temporary disability until these conditions resolved on August 1, 2008.
Lesson: Review file as to all conditions in determining rights to temporary disability.
No third party lien for recovery under underinsured motorist coverage. Lorraine I. McKinnon, 62 Van Natta 274 (2010). http://www.cbs.state.or.us/external/wcb/2010/tpo/0900006tpb.pdf
Facts: Liberty’s insured was injured in a work-related MVA. Claimant filed a suit against the third party allegedly responsible for her injury. The third party insurer tendered policy limits of $25K. Liberty had paid nearly $49K but approved the settlement and collected a $10,500 share. Claimant then pursued a claim against the insurer of the automobile she was driving for underinsured motorist benefits (UIM). This was settled for $60K. Liberty petitioned the Board for a share.
Decision: The Board held Liberty was not entitled to a share. ORS 742.504(4)(c) states UIM coverage does not apply so as to insure directly or indirectly to the benefit of any workers’ compensation carrier or self insurer under any workers’ compensation law.
Lesson: There is no third party recovery for workers’ compensation claim under underinsured motorist coverage.
Attorney Fee awarded when claim withdrawn and denial rescinded.
Facts: Claimant’s supervisor informed claimant he had filed a workers’ compensation claim on her behalf for job stress. Claimant informed her supervisor and employer’s workers’ compensation department she did not wish to file a claim. The employer, nevertheless, issued a denial which claimant appealed. Shortly before the hearing, employer’s counsel stipulated the denial was null and void and the parties agreed to limit the hearing to whether claimant’s attorney was entitled to a fee. The ALJ awarded $2,400.
Decision: The Board upheld the attorney fee.
Lesson: Once claimant is represented by an attorney, the issue of attorney fees is present even when a claim is withdrawn.
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