Winter 2010 SBH Work Comp Quarterly
PDF FormatOregon Workers' Compensation Caselaw Update
Injury on parking lot in course of employment but remanded to determine if arose out of employment. Legacy Health Systems v. Noble, 232 Or App 93 (2009).
The worker slipped on ice and fell on an employer-controlled parking lot during a paid break while walking to a credit union on employer’s campus to deposit a personal check. The Board found the claim compensable. On employer’s appeal, the Court held walking to the credit union was not a social or recreational activity. Therefore, ORS 656.005(7)(b)(B) did not apply. The injury occurred “in the course of” employment under the parking lot exception to the going and coming rule, but the matter was remanded because the Board did not determine if the injury, which occurred during claimant’s personal banking business, “arose out of” employment.
Fainting spell not an unexplained fall. Bobby L. Erving, Jr., 61 Van Natta 2019 (2009).
Claimant was working on an out-of-town construction project in Seattle when he fainted and injured his shoulder. Claimant’s physician eliminated potential idiopathic causes and attributed his loss of consciousness to skipping meals. The Board found that working at the out-of-town construction project required claimant to work very long hours, allowed irregular breaks and meals and less access to food and food storage. The Board determined the medical evidence was sufficient to establish the loss of consciousness was work related.
Compare Erving with Barry M. Sheldon, 52 Van Natta 1830 (2000). In Sheldon, claimant also fell at a construction work site and argued that he fainted due to low blood sugar because he had not eaten lunch on the date of injury. Claimant was provided a time to eat lunch, but regularly did not bring a lunch to eat. On the day he was injured, claimant was given time to eat lunch, but chose not to do so, as was customary for him. He had previously experienced a similar fainting episode due to low blood sugar. Under those circumstances, the Board did not find that claimant’s work or his schedule was the reason he skipped lunch on the day he was injured. Accordingly, the Board concluded that skipping lunch was not a risk inherent in the claimant’s occupation.
Attending physician’s opinion is not given greater weight in determining disability under the vocational assistance rules. Amber Faircloth, 14 CCHR 44 (2009).
At the time of claim closure, claimant was awarded a permanent impairment award and work disability because her attending physician determined she could not return to regular work. The insurer generated medical evidence from other medical experts, which concluded she could return to her job at injury. Accordingly, claimant was found ineligible for vocational assistance. She challenged this decision and argued the “law of the case” was that her disability prevented her from returning to work. In addition, claimant argued her attending physician’s opinion carried more weight. The judge concluded the law of the case doctrine did not apply. In addition, the judge concluded that neither the rule nor the statute which define when a worker qualifies for vocational services specify that the attending physician’s opinion is controlling or entitled to particular deference. ORS 656.340(6)(a); OAR 436-120-0320(11).
Unappealed combined condition denial justifies non-payment of medical bills for combined condition. Gerald T. Frank, 61 Van Natta 2611 (2009).
Employer accepted myocardial infarction combined with preexisting coronary artery disease. The employer also accepted an adjustment disorder with mixed emotional features combined with preexisting noncompensable depressive disorder. On November 9, 2007, the employer issued a denial of the current combined conditions and a NOC. Claimant did not appeal the denial or the NOC. The employer stopped paying for medication prescribed for the coronary and mental disorder conditions incurred after the date of the combined condition denial. This medical services dispute was referred to the Hearings Division to determine if a sufficient causal relationship existed between the disputed medical services and the accepted claim. Claimant argued he did not have a combined condition and his injury remained a material contributing cause of treatment.
Citing SAIF v. Sprague, 346 Or 661 (2009), the Board observed, for a combined condition, the carrier was responsible for only those medical services directed to medical conditions caused in major part by the injury. Because treatment here was directed to the combined condition, claimant must prove major cause. Failure to appeal the denial means the accepted combined conditions were no longer caused in major part by the injury and post November 2007 prescription no longer were compensable.
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