In re Comp. of MacDonald

• Decision Date: 20 September 2019
• Docket Number: WCB Case No. 18-01925
• Parties: In the Matter of the Compensation of STUART A. MACDONALD, Claimant
• Court: Oregon Workers' Compensation Division

71 Van Natta 1052

In the Matter of the Compensation of STUART A. MACDONALD, Claimant

WCB Case No. 18-01925

Oregon Workers' Compensation Division

September 20, 2019

ORDER ON REVIEW

Julene M Quinn LLC, Claimant Attorneys

Travis L Terrall Atty at Law LLC, Defense Attorneys

Reviewing Panel: Members Ousey and Woodford.

Claimant requests review of Administrative Law Judge (ALJ) Ilias's order that: (1) found that claimant's five-year "aggravation rights" had expired before the filing of his aggravation claim for his right rotator cuff tear condition; and (2) dismissed claimant's hearing request regarding the self-insured employer's denial of claimant's aggravation claim. On review, the issues are jurisdiction, and potentially, aggravation, penalties, and attorney fees. We vacate the ALJ's order, reinstate claimant's hearing request, set aside the employer's denial, and award a penalty and penalty-related attorney fee.

FINDINGS OF FACT

We adopt the ALJ's "Findings of Fact" with the following summary and supplementation.

Claimant injured his shoulder at work on November 24, 2010. (Ex. 1). On January 24, 2011, the employer accepted a non-disabling right rotator cuff tear. (Ex. 10).

On May 9, 2012, over a year after the initial acceptance, the employer modified its acceptance to reclassify the claim as disabling. (Ex. 20). A May 6, 2013, Notice of Closure awarded temporary disability benefits from November 25, 2010 (the day after the compensable injury) to May 27, 2011, and permanent disability of 18 percent whole person impairment. (Ex. 30). It also provided that claimant's aggravation rights would expire on May 6, 2018 (five years from the May 6, 2013, Notice of Closure).

On November 30, 2017, claimant treated with Dr. Jacobson, his attending physician. (Ex. 47). Dr. Jacobson recorded symptoms of persistent chronic pain in claimant's right shoulder, and an inability to move the right upper extremity above horizontal. (Id.) He recommended a reverse total shoulder arthroscopy. (Exs. 47, 48).

On December 21, 2017, claimant claimed an aggravation of his accepted right rotator cuff tear condition. The employer denied the aggravation claim on February 28, 2018, stating that the record did not establish a worsening. (Ex. 50). Claimant requested a hearing.

Dr. Jacobson performed right shoulder surgery on May 23, 2018. (Ex. 52). Dr. Jacobson opined that claimant's need for treatment beginning in November 2017 and culminating in the May 2018 surgery represented a "worsening" of the accepted right shoulder rotator cuff tear condition. (Ex. 58-2). He concluded that the worsening was represented by a decrease in functioning of claimant's right shoulder. Id. He explained that such decrease in function in claimant's right arm and shoulder was represented by objective evidence such as increased pain, decreased range of motion, loss of strength, and other signs and symptoms of decreased function. Id. He noted that claimant was temporarily disabled after the May 23, 2018, surgery. (Ex. 58-3).

CONCLUSIONS OF LAW AND OPINION

Finding that claimant's aggravation rights had expired before his December 21, 2017, aggravation claim, the ALJ dismissed the hearing request for lack of jurisdiction. Specifically, the ALJ concluded that because claimant's claim was classified as nondisabling for over a year after the initial acceptance, his aggravation rights expired five years from the date of injury (i.e., November 24, 2015) under ORS 656.273(4)(b).

On review, claimant contends that his aggravation rights ran five years from the date of the Notice of Closure (i.e., May 6, 2018) under ORS 656.273(4)(a), and thus, those rights had not expired before his December 21, 2017, aggravation claim. Additionally, claimant contends that his aggravation claim is compensable. Finally, he seeks a penalty and related attorney fee award for the employer's allegedly unreasonable February 28, 2018, denial.

We begin with the issue of jurisdiction. Based on the following reasoning, we conclude that the Hearings Division has jurisdiction over claimant's aggravation claim.

If a claim has been properly classified as nondisabling for at least one year after the date of acceptance, an aggravation claim must be filed within five years after the date of injury. ORS 656.273(4)(b). For a disabling claim, however, an aggravation claim must be filed within five years after the first Notice of Closure. ORS 656.273(4)(a). An aggravation claim filed after the expiration of aggravation rights cannot be perfected, and a denial of such a claim is a nullity. See Mark D. Stapleton, 51 Van Natta 1779, 1780 (1999); David L. Dylan, 50 Van Natta 276 (1998) (timely filing of aggravation claim a requirement for perfection of claim).

The requirement that an aggravation claim be timely filed under ORS 656.273 is jurisdictional. SM Mather Co. v. Mather, 117 Or App 176, 180 (1992). Claims for which aggravation rights have expired are processed under the provisions of ORS 656.278, the statute addressing our Own Motion jurisdiction, and our Own Motion rules. ORS 656.278(1)(a); OAR 438-012-0001 et seq.; Miltenberger v. Howard's Plumbing, 93 Or App 475 (1988).

Here, the employer initially accepted the claim as nondisabling. However, the May 6, 2013, Notice of Closure awarded permanent disability and temporary disability benefits beginning on November 25, 2010 (the day after the compensable injury). Moreover, the Notice of Closure stated that claimant's aggravation rights would expire on May 6, 2018 (five years from the May 6, 2013, Notice of Closure).¹ Under such circumstances, we find that the claim was improperly classified as nondisabling. Thus, instead of running five years from the date of the injury under ORS 656.273(4)(b), claimant's aggravation rights ran five years from the May 6, 2013, Notice of Closure under ORS 656.273(4)(a). See Mather, 117 Or App at 180 (ORS 656.273(4)(b) did not apply where the claim was not properly classified as nondisabling because the claimant was entitled to three days of temporary disability benefits after the injury); Thomas Jarrell, 68 Van Natta 615 (2016) (concluding that ORS 656.273(4)(b) applied where the claim was initially properly classified as nondisabling because the claimant was not entitled to temporary disability benefits until over one year after the initial acceptance); Darrell K. Falline, 42 Van Natta 919, 920 (1990) (ORS 656.273(4)(b) did not apply where, although the carrier initially classified the claim as nondisabling, the record demonstrated that the claimant was unable to return to regular work following his injury, and thus, the claim was improperly classified as nondisabling). Accordingly, claimant's aggravation claim was timely, and we have jurisdiction to address the merits of that claim.

Turning to the merits, we find the aggravation claim to be compensable. We reason as follows.

To establish a compensable aggravation claim, the record must establish an "actual worsening" of claimant's compensable condition since the last award or arrangement of compensation. ORS 656.266(1); ORS 656.273(1); Nacoste v. Halton Co., 275 Or App 600, 607-08 (2015) (an aggravation claim must be based on the worsening of an accepted condition); Marc. R. Johnston, 69 Van Natta 164, 167-68, recons, 69 Van Natta 341 (2017) (same). An actual worsening can be established either by direct proof of a pathological worsening or through inference of such worsening based on increased symptoms. In the latter instance, the inference must be made by a physician. SAIF v. Walker, 330 Or 102, 118-19 (2009); SAIF v. January, 166 Or App 620 (2000). In either circumstance, the finding of an actual worsening must be "established by objective findings." ORS 656.273(1).

Determining whether claimant's accepted condition actually worsened is a complex medical question that must be resolved by expert medical opinion. Barnett v. SAIF, 122 Or App 279 (1993); Randall L. Childers, 60 Van Natta 591, 592 (2008). Unless there are persuasive reasons to do otherwise, we tend to give more weight to the opinion of a claimant's treating physician. Weiland v. SAIF, 64 Or App 810, 814 (1983). However, we may properly give more or less weight to the opinion of the treating physician depending on the record in each case. Dillon v. Whirlpool Corp., 172 Or App 484, 489 (2001); Emma I. Sims, 63 Van Natta 1198, 1202 (2011) (declining to defer to treating surgeon's opinion in light of well reasoned opinions to the contrary).

Here, Dr. Jacobson, claimant's attending physician, opined that claimant's need for treatment beginning in November 2017 and culminating in the May 2018 surgery represented a "worsening" of the accepted right shoulder rotator cuff tear condition. (Ex. 58-2). He concluded that the worsening was represented by a decrease in functioning of claimant's right shoulder. Id. He explained that such decrease in function in claimant's right arm and shoulder was represented by objective evidence such as increased pain, decreased range of motion, loss of strength, and other signs and symptoms. Id.

We acknowledge that Dr. Jacobson initially recommended the reverse total shoulder arthroscopy surgery before claimant's last award or arrangement of compensation. (Ex. 40). However, Dr. Jacobson's opinion that the accepted rotator cuff tear condition had "actually worsened' was not based on claimant's need for surgery. Rather, it was based on a decrease in function in claimant's right arm and shoulder, as represented by objective evidence. Moreover, Dr. Jacobson's opinion concerning the worsening was not disputed/rebutted by another medical opinion.

Under such circumstances, we find no reason not to defer to Dr. Jacobson's opinion. Weiland, 64 Or App at 814. Accordingly, the record establishes the compensability of claimant's aggravation claim for the accepted right rotator cuff tear condition.

Finally, we turn to the penalty and related attorney fee issues. Claimant asserts that the February 28, 2018,...