Written materials by Roger Pearson, WCB Managing Attorney

Production design by Brooke Stice

WCB Web Coding Specialist

Boring but Important

Stranger than Fiction

Trick or Treat

Sports clichés

So Very Clever Really?

Can’t get there from

here

First day of the rest of your life

Puziss v. Radecki

Let me rephrase

Eleven Overtimes

Hold the presses

Beast of Burden

Circular reasoning

Math is a wonderful

thing

Harm, no foul

Hold your horses

Contin-gency fees

Is it a denial yet?

That almost worked

Don’t worry

about it

Technical Foul

Say again?

“Air quotes”

Past is no longer present

Lawn Roomba

Vote early and vote

often

Down for the Counts

Tomato Tomahto

We don’t care what you call it

Free to Leave

Bony Maroney

Film Study

7-6

Not home free

Even more glad you

said it Job

Analysis v. Affidavit

It’s medicinal

Power of Suggestion

Re-play the down

Your guess is as good as mine

Gong Show

Wendy Mohr, 69 Van Natta 236 (2017) • New standard on whether claimant can

refuse modified job and still collect TTD • Claimant could not drive – immobilized

in a boot • No other method of commute reasonably

available. • Andrews disavowed • Must take into account claimant’s

particular circumstances on the physical ability to commute

Gadalean v. SAIF, 286 Or App 227 (2017) • Job application for truck driver spot • Interview and “safe driving test” • On an actual delivery, disconnecting hoses,

fell and injured hip • Denied – not subject worker • Pre-employment evaluation defense • Facts showed claimant did work • Implied contract for wages • Benefit of evaluating without disrupting

schedule

Scott v. The Sports Authority 283 Or App 518 (2017) • Erroneous letter rescinding denial and

issuing NOA accidentally mailed to claimant attorney (but not claimant)

• Defense atty called claimant atty to ask that letter not be opened

• Acceptance is a question of fact and does not require notice to worker

• Evidence established no acceptance

Providence Health System Oregon v. Walker, 284 OR App 251 (2017) • In September 2009, insurer refused to

close because claimant refused to submit to an IME.

• Refusal to close was reasonable.

• Joy M. Walker, 58 Van Natta 11 (2006) Joy M. Walker, 61 Van Natta 739 (2009) Joy M. Walker, 61 Van Natta 2017 (2009) Joy M. Walker, 63 Van Natta 517 (2011) Joy M. Walker, 63 Van Natta 564 (2011) Joy M. Walker, 66 Van Natta 325 (2014) Joy M. Walker, 67 Van Natta 1597 (2015) Joy M. Walker, 68 Van Natta 371 (2016)

• Providence Health System Oregon v. Walker, 254 Or App 676 (2013) Walker v. Providence Health System Oregon, 267 Or App 87 (2014)

Reynolds v. USF Reddaway, Inc., 283 Or App 21 (2016) • New/omitted claim for L5-S1 disc

herniation in 2011. (Strain accepted). • Denied, no appeal. • In 2012, condition worsened, requiring

surgery at L5-S1. • Denial upheld under “law of the case” and

claim preclusion. • Court of Appeals reversed. “Law of the

case” only applicable to appellate courts • Not precluded – different operative facts.

Joshua Canoy, 69 Van Natta 481 (2017) • Cubital tunnel, radial nerve claim • Normal NCV, normal MRI • Puziss, Buncke v. Radecki, Leadbetter • Buncke: Can have nerve compression

despite normal tests • Radecki: Very rare diagnosis (3-4/40,000),

psycho-social - “Mind-body interface.” • Puziss AP 4 years – straightforward

exams. Not rare – operated on this 75 times.

Sheldon v. US Bank, 281 Or App 560 (2016) • Walking through lobby, claimant fell • Board affirmed denial – claimant did

not eliminate idiopathic causes • IME: diabetes, obesity – neuropathy? • PCP: No history of neuropathy • Livesly (1983) to Blank (2012) –

claimant must eliminate idiopathic causes – standard to disprove?

• “Less than equally likely idiopathic”

Nancy Eggert, 69 Van Natta 791 (2017) • Carrier accepted claim “contingent” • Dismissed its appeal • Claimant wanted “contingent” removed,

but carrier did not respond • Case law: When litigation order is final,

claim is considered accepted • Dismissal of appeal, contingency expired • Claimant’s request a clarification • Failure to respond – not a denial, but

unreasonable. Penalties and fees.

Ernest Lyons, 69 Van Natta 688 (2017) • Initial claim. MRI showed biceps tear

and SLAP lesion. 827 requested acceptance of new/omitted.

• Accepted strain, surgery approved. • De facto denial alleged • New/omitted condition requested,

carrier accepted • New/omitted claim depends on prior

acceptance. Not unreasonable.

Dawn Turner, 69 Van Natta 444 (2017) • Delay in providing discovery, and it was

unreasonable • No penalty/attorney fee under 656.262(11) • No delay in accept/deny, and • No delay or refusal to pay compensation. • Claimant cited Emma Traner for the idea

that a “delay” in processing impairs a “procedural right.”

• Board: “Delay” and “Procedural right” in Traner were in the context of a timely accept/deny.

Roy Sheppard, 68 Van Natta 1482 (2016) • Chronic condition at issue • Claimant able to repetitively use

thoracic spine/chest for 5/8 time • Legal standard is 2/3 time • 5/8 would normally get the award • But other comments said injury was

minimal and healed

Michelle Wharton, 68 Van Natta 1192 (2016) • Fibromyalgia diagnosis made by ruling out

other causes, using: • 1990 tender points criteria from ACR

replaced by widespread pain index and symptom severity scale

• IME: No utility to the index and scale beyond evaluating “how fibromyalgic somebody’s symptoms were.”

• Don’t have to prove it’s the best description to prove the existence

Ryan Marchand, 68 Van Natta 1693 (2016) • Insurer told imaging center they don’t have a

cervical claim, not authorizing diagnostics • Told WCD the medical service was not causally

related to accepted condition • At hearing, contended they had simply declined

to pre-authorize, but had timely paid for tests • Board: Response to WCD was a denial • Payment rescinded the denial, attorney fee • Note: Mere payment is not a rescission or

acceptance unless the issue is non-payment Ed Hill

Angela Freemont, 69 Van Natta 57 (2017) • Prescribed DMSO for a wrist injury, • Consequential condition – skin burn -

from “reasonable and necessary” tx • WCD rule – DMSO not “reasonable and

necessary” by rule • Board noted WCD authority does not

extend to compensability • It was prescribed treatment, thus

“reasonable and necessary” for a consequential condition

Akins v. SAIF, 286 Or App 70 (2017) • Claim for combined arthritis - denied • Board found claimed conditions were

not distinct from accepted conditions • Claimant didn’t dispute that – argued

carrier should accept them anyway. • Court cited Nacoste for idea that

process is for distinct conditions. • No support for idea that insurer must

reaccept and “reprocess” conditional already accepted.

Kelley Hagenauer, 22 CCHR 34 (2017) • Carrier refusal to refer claimant to MD • MCO approved one visit • Carrier would not authorize pending

IME, thus a delay in treatment. • Province of MCO to determine

appropriate treatment. • Adjuster’s communications with MCO

were outside of ORS and OAR • Penalties and fees awarded. .”

Shearer’s Foods v. Hoffnagle, 284 Or App 859 (2017) • Denial of new injury, but letter said

benefits paid under prior claim. • Discs claimed under accepted claim. • Combined condition denial issued • Board found denial letter

communicated acceptance of “current condition,” which included discs.

• Court affirmed – reasonable for Board to understand letter had that effect.

Brenda Allen, 68 Van Natta 2008 (2016) • Epicondylitis claim • IME found non-physiological pain –

somatic symptom disorder • 2 other IMEs agreed • Carrier argued 656.802(1)(b) – mental

disorder … any physical disorder caused or worsened by mental stress

• But IMEs did not assert there was a physical disorder – only symptoms

Lloyd Fleming, 69 Van Natta 1238 (2017) • Prior claim settled by DCS – “current

condition not due to work activities.” • “Legal effect as if claimant admitted

and agreed to insurer’s contentions” • Later filed new claim for shoulder

occupational disease. • Based on language of DCS, claimant

could not use pre-DCS work exposure in calculation of major cause

David Boswell, 68 Van Natta 1701 (2016) • Statement: Shoulder pain with gradual

onset plus an incident • Denial of OD. Response to Hearing

request: Denied injury or OD • Carrier postponement: New theory • Carrier accepts an injury • Supplemental RFH – de facto on injury • Surprise? No postponement • Both were alleged, denial encompassed

both or de facto denied injury.

DeBoard v. Fred Meyer, 285 Or App 732 (2017) • Filed for protrusions. • IME said degenerative bulges, not

protrusions, which are traumatic • Noted bulge v. protrusions can be

interchangeable • Claimant argued “magic words.” • Court noted Board could reasonably

rely on IME’s distinctions, even if others used terms interchangeably.

Garcia-Solis v. Farmers Insurance, 288 Or App 1 (2017) • Struck on head by tent pole, accepted for

head injuries • AP sought referral to psychologist for

PTSD-like symptoms, due to “work injury”

• Denial – not due to accepted conditions • Brown revived holdings that diagnostic

serves are to determine cause or extent of accepted condition

• Similar case pending at Supreme Court

Duffour v. PCC, 283 Or App 680 (2017) • Challenging closure and asserting

unreasonable - 656.268(5) penalty. • Must be “at a hearing.” • Recon rescinded closure - went final • Claimant had already filed RFH, then

filed another – consolidated. • No statute or rule prohibiting early

RFH, and it was never declared premature.

Morelli v. Argonaut Ins. Co., 284 Or App 876 (2017) • Injury put claimant in a wheelchair • Could not maintain his lawn • Doctor recommended lawn service • Claim for medical service • Not same kind or class of services in

656.245 • Automatic mower not a prosthetic device

Orowheat –Bimbo Bakeries v. Vargas, 287 OR App 331 (2017) • Accepted claim, partial denial,

enrolled in MCO • Treating with non-MCO doctor. TTD? • 656.245(4)(b)(D) allows workers to

received medical care from non-MCO provider after date of denial, but no mention of TTD in statute.

• 656.245(4)(a) - workers are subject to MCO contract for accepted claims

James Cook, 68 Van Natta 1948 (2016) • In-home caregiver leaving work • Carried empty egg cartons to fill and

bring back • Slipped on ice and said, “Aren’t you

glad I clocked out?” • Going and coming rule applied • No “special errand” exception • Also testified he was carrying food

scraps for his chickens

Slater v. SAIF, 287 Or App 84 (2017) • Combined condition denial and MRI

at issue • Denial affirmed by court • Remanded MRI issue to board –

combined condition denial does not eliminate medical services

• Is the condition to which services are directed caused in material part by injury?

McDermott v. SAIF, 286 Or App 406 (2017) • Can you apportion PPD due to pre-

existing condition without denial of combined condition?

• 40% to injury, 60% to arthritis • OAR allows apportionment if combined

condition is denied – but only then? • Legally-cognizable pre-existing conditions

can be apportioned. • Schleiss did not decide whether they need

to have been denied. • Dissenting opinion with 7-6 vote

Jesus Pena, 69 Van Natta 772 (2017) • OAR - surveillance video must be seen

by AP to be sent to medical arbiter • Video not fully reviewed by AP • Arbiter relied on video in part • Claimant argued arbiter report

should be excluded from the record. • No precedent for exclusion, report

comes in. • Remedy is civil penalty or request for

extension.

Tracy Gerlack, 68 Van Natta 1637 (2016) • Job involved recovering body parts

from deceased donors for transplant • Gripped tibia to bend knee in order to

cut the tendon, injured thumb • Insurer argued doctor had incorrect

history (referred to femur, not tibia). • Board found the history was sufficient

– doctor knew it was a cadaver leg.

Kevin Tucker, 69 Van Natta 968 (2017) • Claimant signed JA, and AP approved • At recon, claimant submitted affidavits

describing heavier job. Exceeded work restrictions.

• Affidavits found persuasive: claimant explained inconsistencies, voc counselor noted lengthy discussion with claimant, and voc counselor was not able to observe heavier seasonal tasks.

• Work disability awarded.

Mark Rudzik, 68 Van Natta 1576 (2016) • Hearing loss claim. • Significant loss by age 32 – found only

in front line military and “heavy metal rock guitarists”

• Hodgson’s opinion that work noise could not exceed OSHA regulations

• Co-workers would prank claimant when he was in the metal tube – hit it with a sledgehammer

Mark Nations, 68 Van Natta 1665 (2016) and Nadezgda Nikolaeva, 69 Van Natta 427 (2017) • Nations: CRPS denied. AP not given deference.

Expert analysis case. AMA 6th edition criteria. Diagnosis of exclusion, but claimant had other diagnoses which could account for symptoms (atrophy, osteoporosis, spotty fusion)

• Nilolaeva: CRPS compensable. Budapest criteria: Symptoms disproportionate, 3 categories of symptoms with 2 or more at all times, no better diagnosis explains it. But not precluded by ORS 656.266(1).

Robert Coleman, 69 Van Natta 850 (2017) • New condition via 827 prior to NOA • Chart note: 827 needs to be addressed • RFH – de facto denial • Employer response: RFH premature • Hearing continued – letter to ALJ raising de

facto denial of condition • New/omitted condition filed, accepted • Board: 827 not a proper “new” claim • Chart note is not a claim • Letter to ALJ challenged scope of acceptance,

not a clear request for formal written acceptance.

Jolene Brill, 69 Van Natta 461 (2017) • Claimant awarded work disability,

carrier sought Recon (limited) • Carrier submitted letter from AP –

work restrictions not due to injury. • ARU took away work disability • Case law: No limits on ARU review • Board: Submitted report served to

raise prohibited issue. • New ARU rule: Review issues raised

Brooke Woodard, 69 Van Natta 266 (2017) • New employee of medical marijuana

dispensary (NCE) • After training/orientation, invited to

smoke with manager and owner • Ran/somersaulted across parking lot,

climbed 15-foot fence and dropped, fracturing ankle.

• Compensable: Subjectivity, course and scope. (Acquiescence not at issue)