Columbia Forest Products v. Woolner

• Decision Date: 31 October 2001
• Citation: 177 Or. App. 639,34 P.3d 1203
• Parties: In the Matter of the Compensation of Bonnie J. Woolner, Claimant. COLUMBIA FOREST PRODUCTS, Petitioner, v. Bonnie J. WOOLNER, Respondent.
• Court: Oregon Court of Appeals

34 P.3d 1203

177 Or. App. 639

In the Matter of the Compensation of Bonnie J. Woolner, Claimant.

COLUMBIA FOREST PRODUCTS, Petitioner, v. Bonnie J. WOOLNER, Respondent.

99-04302, 99-02707, 98-09381, A111862

Court of Appeals of Oregon.

Argued and Submitted August 24, 2001.

Decided October 31, 2001.

Karen O'Kasey, Portland, argued the cause for petitioner. With her on the briefs were Jean Ohman Back and Schwabe, Williamson & Wyatt.

Mustafa T. Kasubhai argued the cause and filed the brief for respondent.

Before LANDAU, Presiding Judge, and BREWER and SCHUMAN, Judges.

BREWER, J.

Employer seeks review of an order of the Workers' Compensation Board overturning employer's current condition denial. The primary question on review is whether an employer may issue a preclosure claim denial under ORS 656.262(7)(b)¹ for a "combined condition" if its earlier acceptance did not expressly identify the claim as one for a combined condition. We reverse and remand.

We state the facts as the Board found them, supplemented with undisputed evidence in the record. Claimant injured her neck and right shoulder at work on May 29, 1996. She had a preexisting condition, bilateral multidirectional instability, which combined with the work-related injury to require medical treatment. Dr. Fowler subsequently performed surgery on claimant's right shoulder, and employer's insurer accepted a claim for "multi-directional instability, right shoulder and cervical strain."² On March 31, 1998, Fowler indicated that claimant's shoulder condition was medically stationary. On November 25, employer issued a preclosure current condition denial that stated:

"The current medical information indicates that your right shoulder problems preexisted your 5/29/96 injury. The information indicates that your injury of 5/29/96 combined with the preexisting right shoulder problem and temporarily exacerbated the problem which has now been repaired through surgery and returned to your preinjury status. Based on the medical information, we are denying the compensability of your current right shoulder condition as the injury of 5/29/96 no longer remains the major contributing cause of that condition and need for treatment."

On January 4, 1999, employer closed the claim. Claimant requested a hearing, challenging the denial. The administrative law judge (ALJ) affirmed the denial:

"[Employer] accepted a combined condition-multi-directional instability. * * * [T]he damage due to the injury has been repaired surgically—[claimant] now has less laxity than prior to the injury. The major cause of her need for treatment is no longer the injury. Dr. Fowler agrees, noting that the surgery may require future palliative care. Whether claimant's future need for treatment is related in major part to her surgical sequelae is a question for the future. At the time the denial issued, it was technically correct."

Claimant appealed to the Board. In an order dated September 5, 2000, the Board expressly adopted the ALJ's findings of fact, but it reached the opposite conclusion, stating that

"the employer expressly accepted `multidirectional instability' of the right shoulder, but it did not accept a `combined condition.' Because the employer did not accept a combined condition, it may not properly issue a `preclosure' denial under ORS 656.262(6)(c) or ORS 656.262(7)(b). Accordingly, we reverse that portion of the ALJ's order that upheld the employer's denial."

In a footnote, the Board noted that,

"at the time the current condition denial was issued, there was neither ongoing treatment nor any request for further medical services related to claimant's right shoulder condition. Accordingly, we also conclude that the employer's November 1998 current condition denial was an improper prospective denial of claimant's right shoulder condition."

The Board also awarded claimant attorney fees of $2,000.

On review, employer assigns error first to the Board's determination that employer did not accept a combined condition. Employer contends that the uncontroverted evidence showed that claimant's multidirectional instability was, in fact, a preexisting condition, and that, after surgery, the workplace injury ceased to be the major contributing cause of claimant's need for treatment. Therefore, it argues, it accepted a combined condition, and its preclosure denial was proper under ORS 656.262(7)(b). Claimant responds that: (1) ORS 656.262(6)(b)(A)³ requires an employer to "specify what conditions are compensable" in its notice of acceptance; (2) employer's notice of acceptance did not state explicitly that it accepted a combined condition; and (3) employer's denial based on a combined condition under ORS 656.262(7)(b) was therefore improper as a matter of law.

The undisputed medical evidence established that claimant suffered from a combined condition. However, after expressly adopting the ALJ's finding of fact that "a pre-existing condition * * * combined with injury to require medical treatment," the Board rejected the ALJ's conclusion that employer had accepted a combined condition. In a single sentence the Board explained that "the employer expressly accepted `multidirectional instability' of the right shoulder, but it did not accept a `combined condition.'" The Board cited no particular evidence in support of that determination.

The scope of an acceptance is a question of fact. See, e.g., SAIF v. Dobbs, 172 Or.App. 446, 451, 19 P.3d 932,

adhered to as mod. on recons 173 Or.App. 599, 23 P.3d 987 (2001); Granner v. Fairview Center, 147 Or. App. 406, 935 P.2d 1252 (1997); SAIF v. Tull, 113 Or.App. 449, 454, 832 P.2d 1271 (1992). Accordingly, we review the Board's determination that employer did not accept a combined condition for substantial evidence. ORS 183.482(8)(c). Employer cites Blamires v. Clean Pak Systems, Inc., 171 Or.App. 263, 15 P.3d 101 (2000), for the proposition that an acceptance of a combined condition is not required to include the specific words "combined condition." In Blamires, the employer issued, in the following order, (1) an acceptance that did not mention a combined condition; (2) a denial under ORS 656.262(7)(b) in reliance on the existence of a combined condition; and (3) an express acceptance of the combined condition. The Board upheld the denial on the basis of the employer's express acceptance of the combined condition. Citing Croman Corp. v. Serrano, 163 Or.App. 136, 986 P.2d 1253 (1999), we reversed:

"The rule of Croman Corp. is that, under the wording of ORS 656.262(6)(c), the acceptance of a combined condition must precede the denial of a combined condition. Here, the Board did not make any finding about whether the [initial] acceptance was the acceptance of a combined condition. Rather, it did not believe that it was required to do so." Blamires, 171 Or.App. at 267, 15 P.3d 101 (emphasis in original).

We remanded the issue to the Board to make a finding on that issue, despite the fact that the words "combined condition" did not appear in the initial acceptance. Id.

Employer argues that Blamires held, in effect, that no "magic words" are required to establish an acceptance of a combined condition. Claimant responds that Blamires is distinguishable, because in that case, the Board made no determination regarding whether employer had accepted a combined condition, whereas in this case, the Board expressly decided that employer had not accepted a combined condition. Claimant relies on Bauman v. SAIF, 295 Or. 788, 670 P.2d 1027 (1983), and Tattoo v. Barrett Business Service, 118 Or.App. 348, 847 P.2d 872 (1993), for the proposition that employer is bound by the express language of its notice of acceptance, which, in this case, merely accepted "multidirectional instability, right shoulder and cervical strain."

In Bauman, the employer accepted a claim and paid benefits for three years. However, when the claimant attempted to reopen his claim for aggravation, the employer reversed its position and denied the original claim. The Supreme Court held the employer to its original acceptance:

"[The] employer is not at liberty to accept a claim, make payments over an extended period of time, place the compensability in a holding pattern and then, as an afterthought, decide to litigate the issue of compensability. * * *

"Accordingly, we agree with the Court of Appeals that it was not permissible for [the employer] to reconsider and deny the previously accepted claim and that the Board erred in allowing this belated denial." 295 Or. at 794, 670 P.2d 1027.

In Tattoo, the claimant sought payment for chiropractic care allegedly necessitated by an injury. The employer issued a denial, which stated that "[m]edical information received to date indicates that current chiropractic care is not reasonable and necessary, and does not result from the * * * injury * * *. Therefore, [we] must respectfully deny current chiropractic care." 118 Or.App. at 350, 847 P.2d 872. At a hearing on claimant's claim, the employer's claims examiner testified that she meant the denial to cover past treatment and treatment into the future and that she did not believe it would be necessary to issue subsequent denials for future treatment. Id. at 351, 847 P.2d 872. On review, the claimant contended that the examiner's testimony showed that the denial of chiropractic care was impermissibly prospective. We disagreed, stating that "[w]e hold that employers are bound by the express language of their denials and the testimony of the claims examiner here is irrelevant." Id. at 351-52, 847 P.2d 872.

Both Bauman and Tattoo stand for the principle that an employer may not accept a condition and later assert a position that contradicts the express language of its acceptance. In this case, however, claimant does not contend that employer is asserting a position that contradicts the express terms of its acceptance. Claimant does not deny that her "multidirectional instability" preexisted her...