Summer 2009 SBH Work Comp Quarterly
Oregon Workers' Compensation
PDF FormatOregon Workers’ Compensation Board Decisions
Employer conveyance exception to the going and coming rule not applied. Lorena Alvaraz-Rubio, 61 Van Natta 1646 (2009).
Claimant supervisor was provided a company car as a “perk” and was injured in an MVA when driving home. She was restricted from using the vehicle for personal purposes. While the employer testified there were adequate parking spots, claimant testified there were not. She asserted the employer benefited when she did not drive her own car to work since there were only 15 parking spaces and 25 employees. Members Langer and Herman found Dehiay v. Spencer, 221 Or App 539 (2008) to be distinguishable because there the employee was commuting per employer instructions between work and a designated employee residence used while working for the employer during the week. In the instant case, claimant was neither paid for her travel time nor was she furthering the employer’s business. Use of the car was also optional. Member Weddell dissented, citing William B. Ford, 48 Van Natta 581 (1994). Ford had involved parking shortages that required employees to drive vans home at night to avoid vandalism within the context of several vans being vandalized before the policy was instituted.
Use of the word “ceases” in a denial makes it a current condition denial. Jose P. Vellegas, 61 Van Natta 626 (2009).
Employer accepted a non-disabling right lumbar strain. At that time, claimant was also diagnosed with spondylosis and DDD. Ten months later, employer issued a partial denial of claimant’s “current condition,” stating the accepted condition “ceased to be” the major cause of the current condition and need for treatment. The denial specifically said it was not a back-up denial. A later amended denial also denied DDD. The Board said ORS 656.262(6)(c) and the use of the word “ceases” demonstrated a combined condition denial and was invalid since there had been no combined condition acceptance as claimant had not made a new medical condition claim for DDD and the submission of bills does not constitute a claim; denial number two was precautionary and a nullity.
Consequential condition needs to establish subsequent or superseding event. William T. Pepperling, 61 Van Natta 186 (2009).
SAIF argued MRSA infection after accepted laceration should be analyzed as a consequential condition and, hence, major contributing cause standard to establish compensability. The Board disagreed and found MRSA infection was caused by the injury, so the material contributing cause standard applied. The Board relied upon evidence that infection developed once the skin was broken by the laceration and so arose directly from the injury. They did not find a subsequent or superseding event that caused the infection to establish a consequential condition.
Attending physician statement: “Return to full duty with no limitations” does not establish release to “regular work.” Jason Monaghan, 61 Van Natta 1308 (2009).
To prevent a work disability award, the attending physician should review the job description of the regular work and clearly state claimant is released to a job without limitations. In this case, the Board held claimant was entitled to a work disability award because it was uncertain the attending physician had an accurate understanding of the work activities despite the attending physician reporting return to full duty without limitation.
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