In re Comp. of Mccavitt

• Decision Date: 05 March 2021
• Docket Number: WCB Case No. 19-05950
• Citation: 73 Van Natta 185
• Parties: In the Matter of the Compensation of PENELOPE M. MCCAVITT, Claimant
• Court: Oregon Workers' Compensation Division

73 Van Natta 185

In the Matter of the Compensation of PENELOPE M. MCCAVITT, Claimant

WCB Case No. 19-05950

Oregon Workers' Compensation Division

March 5, 2021

ORDER ON REVIEW

Julene M Quinn LLC, Claimant Attorneys

SAIF Legal Salem, Defense Attorneys

Reviewing Panel: Members Curey and Ousey.

Claimant requests review of Administrative Law Judge (ALJ) Ogawa's order that: (1) upheld the SAIF Corporation's denial of her occupational disease claim for a right arm condition; (2) did not address an alleged denial of a left arm condition; and (3) did not award an attorney fee for prevailing over an allegedly void denial. On review, the issues are compensability, scope of the issues, and attorney fees.

We adopt and affirm the ALJ's order in regard to the right elbow condition, and offer the following supplementation regarding the alleged left arm condition denial and associated attorney fees.

In August 2019, claimant completed an 801 form, describing symptoms in her right hand and arm. (Ex. 13). In September 2019, SAIF denied a claim for "an occupational disease described as a left upper extremity condition, right upper extremity condition." (Ex. 22). While claimant received treatment for her right elbow symptoms, she never claimed a left arm condition, nor did she seek treatment for her left arm. (Exs. 13, 21, 24).

At hearing, both parties agreed that the issue was the compensability of an occupational disease claim for a right elbow condition, along with attorney fees and costs should claimant prevail on that issue. (Tr. 1). Claimant's counsel further clarified that "despite SAIF's denial," what was at issue was claimant's "right arm condition only." (Tr. 2). SAIF's counsel responded in agreement, stating that the issue was "an occupational disease claim for a right upper extremity condition." (Tr. 3).

The ALJ upheld SAIF's denial of claimant's occupational disease claim for a right elbow condition. Reasoning that Dr. Verheyden's opinion did not persuasively establish that claimant's work activities were the major contributing cause of her right elbow condition, the ALJ found that claimant did not satisfy her burden of proving compensability.

On review, claimant contends that the right arm condition is compensable. Additionally, claimant asks us to set aside as void that portion of the denial that referenced a left arm condition and she requests an assessed attorney fee for prevailing over that denial. For the following reasons, we decline to address issues related to the allegedly void left arm condition denial.

It is established that a carrier's denial of a condition that has never been claimed is "void" because there was no "claim" to deny. Stephenson v. Meyer, 150 Or App 300, 302 (1997); Altamirano v. Woodburn Nursery, Inc., 133 Or App 16, 19-20 (1995) (a denial issued in the absence of a claim is a legal nullity); Barbara J. Ferguson, 63 Van Natta 2253, 2258 (2001). A "void" denial is, nevertheless, a denial of a claim under ORS 656.386(1). See Cervantes v. Liberty Northwest Ins. Corp., 205 Or App 316, 323 (2001). If a claimant prevails over a "denied claim," or if their attorney was instrumental in obtaining a rescission of the denial prior to a decision by the ALJ, the claimant's attorney is entitled to an attorney fee under ORS 656.386(1).¹ Id. at 323-24.

However, when an issue is raised for the first time on review, we are not inclined to consider the issue. See Stevenson v. Blue Cross, 108 Or App 247 (1991) (Board can refuse to consider issues on review that are not raised at hearing); Fister v. South Hills Health Care, 149 Or App 214 (1997) (absent adequate reason, Board should not deviate from its well-established practice of considering only those issues raised by the parties at hearing); Terry L. Byers, 69 Van Natta 1190 (2017) (Board's practice is to not to consider issues raised for the first time on review).

Here, as stated above, both parties agreed at hearing that the sole issue before the ALJ was the compensability of an occupational disease claim for a right elbow condition, along with attorney fees and costs should claimant prevail on that issue. (Tr. 1). Both parties subsequently affirmed that the issue at hand was the right elbow condition. (Tr. 2, 3).

Therefore, because the issue was narrowed to the compensability of the right arm condition (and...