In re Ferguson
| Decision Date | 14 November 2011 |
| Docket Number | WCB Case No. 10-04062 |
| Citation | 63 Van Natta 2253 |
| Parties | In the Matter of the Compensation of BARBARA J. FERGUSON, Claimant |
| Court | Oregon Workers' Compensation Division |
ORDER ON REVIEW
Daniel M Spencer PC, Claimant Attorneys
Reviewing Panel: En Banc. Members Langer, Weddell, Lowell, Biehl, and Herman.
The self-insured employer requests review of that portion of Administrative Law Judge (ALJ) Lipton's order that set aside its denial of claimant's current low back condition. In her respondent's brief, claimant contests that portion of the ALJ's order that did not award a penalty and attorney fee for allegedly unreasonable claim processing. On review, the issues are claim processing, penalties, and attorney fees. We affirm.
We adopt the ALJ's "Findings of Fact," which we summarize as follows.
Claimant was compensably injured in November 2009 and the employer accepted a disabling lumbar strain. (Ex. 19). Her back pain persisted and she also complained of right-sided symptoms of numbness and paresthesias. A January 14, 2010 CT scan was interpreted as showing an L4-5 disc bulge and L5-S1 disc bulge/herniation. (Ex. 22). A February 19, 2010 nerve conduction study (NCS) was interpreted as demonstrating mild bilateral L5-S1 radicular dysfunction, worse in the right L5 distribution. (Ex. 34A-3).
In March 2010, Drs. Graham and Williams examined claimant at the employer's request. (Ex. 40). They concluded that claimant's lumbar strain had resolved and attributed her symptoms to L4-5 and L5-S1 degenerative disc disease. (Ex. 40-4, -5; see also Ex. 44-2). Claimant's treating physicians (Drs. Lim and Yangson) did not concur. (Exs. 41, 42).
In June 2010, Dr. Woodward examined claimant at the employer's request. He diagnosed a resolved lumbar strain, lumbar spondylosis, and "chronic low back pain and right lower extremity symptoms of no orthopedic diagnosis." (Ex. 48-7). Dr. Yangson disagreed with that opinion and continued to diagnose a lumbar strain. (Exs. 49, 49A).
On July 19, 2010, the employer issued the following denial:
(Ex. 50-1).
On July 27, 2010, Dr. McNeil reviewed claimant's medical records at the employer's request. (Ex. 53). He concluded that claimant had "normal" degenerative disc disease at L4-5 and L5-S1 for an individual her age. (Ex. 53-8). He added that there was "no evidence of nerve root compression that would account for her peripheral symptoms or her symptomatology." (Id.) He concluded that claimant's symptoms "should have resolved" between six and eight weeks after the injury. (Id.)
Dr. Lim disagreed with the opinions of Drs. Graham, Williams, Woodward, and McNeill, opining that claimant "has a severe and atypical strain in that it has not diminished in intensity with time and treatment * * *." (Ex. 57-7). He added that claimant's "muscle spasms are very palpable on her back." (Id.) He believed that her condition was "medically stationary" and that all of her impairment was due to the work injury. (Id.) He separately described her lumbar condition as a "combined condition" involving both the strain and underlying degenerative disc disease. (Ex. 57-6, -7). With some modifications, Dr. Yangson concurred with Dr. Lim. (Ex. 60).
Claimant requested a hearing concerning the employer's July 19, 2010 denial.
Relying on Clayton Lane, 62 Van Natta 557 (2010), the ALJ set aside the employer's denial as an invalid "pre-closure" denial of the accepted lumbar strain. Specifically, the ALJ reasoned that the employer's denial should be set aside because the medical evidence did not "'unequivocally' indicate that claimant's current condition is not related to the accepted condition."
On review, the employer argues that the "unequivocal" standard cited in Lane imposes an improper standard on a "current condition" denial. The employer contends that the term "unequivocally" arose from the Board's "factual finding" in Zora A. Ransom, 46 Van Natta 1287 (1994), and that the factual finding "has, over time, been converted into a new and improper standard of law for employers to meet: unequivocal proof of an unequivocal absence of nexus between the accepted condition and the denied current condition."1
Claimant contends that, under longstanding Board precedent, a pre-closure "current condition" denial of an accepted disabling claim is permissible only so long as it pertains to a condition separate or severable from the accepted condition, with the medical evidence "unequivocally" indicating that the current condition is not related to the accepted condition. Claimant also argues that there is no statutory (or policy) basis for a "current condition" denial in these circumstances. In light of various statutory amendments to the Workers' Compensation Act, claimant requests that we invalidate the employer's pre-closure "current condition" denial.
After conducting our review, we conclude that the current statutory scheme does not provide a basis for the employer's denial. We reason as follows.
A denial issued in the absence of a claim is a legal nullity. Altamirano v. Woodburn Nursery, Inc., 133 Or App 16, 19-20 (1995).2 Under ORS 656.005(6), a "claim" is "a written request for compensation from a subject worker or someone on the worker's behalf, or any compensable injury of which a subject employer has notice or knowledge." For purposes of new/omitted medical condition claims, a claimant must "clearly request formal written acceptance of a new medicalcondition or an omitted medical condition from the [carrier]." ORS 656.267; see also ORS 656.262(6)(d), ORS 656.262(7)(a).3 The scope of a denial is a question of fact. Longview Inspection v. Snyder, 182 Or App 530, 536 (2002).
Here, there is no dispute that: (1) the employer has accepted an injury claim for a "lumbar strain"; (2) the employer has not closed that claim pursuant to ORS 656.268; (3) the employer has not accepted a "combined condition"; (4) claimant has not requested that the employer accept a new/omitted medical condition; and (5) the employer's denial was not issued in response to a medical services bill or a claim for medical services. Nevertheless, the employer issued a denial stating:
(Ex. 50-1).
Employers are bound by the express language of their denials. Tattoo v. Barrett Business Service, 118 Or App 348, 351 (1993). Here, the employer's denial contains the following statements: (1) claimant's accepted lumbar strain "is no longer a material contributing cause of [her] ongoing symptoms, or need for treatment"; (2) the accepted lumbar strain "is medically stationary with no permanent impairment"; and (3) "[t]herefore, [the employer denied claimant's] current condition." (Id.)
The express language of the denial denied claimant's "current condition." (Id.) The employer's use of the term "therefore," indicates that the denial was based on the accepted lumbar strain "no longer [being] a material contributing cause of [claimant's] ongoing symptoms, or need for treatment," as well as the strain being "medically stationary with no permanent impairment." See Webster's Third New Int'l Dictionary 2372 (unabridged ed 2002) (defining "therefore" as "for that reason: because of that: on that ground: to that end: CONSEQUENTLY, HENCE," and "a proved proposition: an argumentative conclusion: a logical implication").
We first determine what the employer's denial purports to deny. See Cervantes v. Liberty Northwest Ins. Corp., 205 Or App 316, 322 (2006) (). By its terms, the employer has not denied a medical service, but a "condition." (Ex. 50-1). As set forth above, because claimant has not filed a new/omitted medical condition claim, any denial of such an unclaimed "condition" would be premature and invalid. Altamirano, 133 Or App at 19-20; Lauri A. Chambers, 63 Van Natta 1322, 1325 n 4 (2011); Charles L. Kachel, Sr., 56 Van Natta 3842, 3847 (2004); Tony Cervantes, Jr., 56 Van Natta 2054, 2056, rev'd on other grounds, 205 Or App 316 (2006); Guillermo Ruvalcaba, 51 Van Natta 313, 315 (1999). Yet, that is the most reasonable interpretation of the employer's denial - i.e., a denial of an unidentified unclaimed "current condition" that is "separate and severable" from the accepted lumbar strain. (See Ex. 50-1). Because such a denial of an unclaimed condition is prohibited, we affirm the ALJ's order setting aside the employer's denial.
We acknowledge previous cases holding that, in the context of an accepted, open claim, an employer may issue a "current condition" denial "so long as it pertains to a condition separate or severable from the accepted condition." See Lane, 62 Van Natta at 558; see also Celina U. Centeno, 56 Van Natta 540, 541 (2004); Ruvalcaba, 51 Van Natta at 314; Joey D. Smalling, 50 Van Natta 1433, 1435; Elizabeth R. Bernsten, 48 Van Natta 1219, 1222; Ransom, 46 Van Natta at 1287. Although such denials have long been "disfavored," they have been permitted so long as the evidence ...
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