In the Matter of The Comp. of David S. Lund v. Lund, 0801725; A142480.

• Decision Date: 17 August 2011
• Docket Number: 0801725; A142480.
• Parties: In the Matter of the Compensation of David S. LUND, Claimant.ROSEBURG FOREST PRODUCTS, Petitioner,v.David S. LUND, Respondent.
• Court: Oregon Court of Appeals

245 Or.App. 65

261 P.3d 1265

In the Matter of the Compensation of David S. LUND, Claimant.ROSEBURG FOREST PRODUCTS, Petitioner,

v.David S. LUND, Respondent.

0801725; A142480.

Court of Appeals of Oregon.

Argued and Submitted Aug. 25, 2010.Decided Aug. 17, 2011.

H. Scott Plouse, Medford, argued the cause and filed the briefs for petitioner.Jon C. Correll, Eugene, argued the cause and filed the brief for respondent.Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and ROSENBLUM, Senior Judge.WOLLHEIM, J.

Employer seeks review of an order of the Workers' Compensation Board that concluded, in part, that employer had previously accepted claimant's shoulder condition as a combined condition. Employer makes three assignments of error: first, that the board erred in holding that employer accepted a combined condition; second, that the board's conclusion that employer accepted a combined condition is not supported by substantial evidence; and third, that the board's conclusion that employer accepted a combined condition is dicta. ¹ We affirm.

We state the facts, which are not in dispute, as the board found them. On August 12, 2003, claimant suffered a compensable injury to his right shoulder. Employer accepted a nondisabling right shoulder strain. On January 6, 2005, claimant requested that employer expand the scope of its acceptance to include a right shoulder rotator cuff tear. Employer denied claimant's request.

Claimant requested a hearing and argued that he incurred a right shoulder rotator cuff tear as a direct result of his compensable injury. Employer contended that claimant's right shoulder rotator cuff tear was the result of a preexisting degenerative condition, not claimant's August 12, 2003, injury or claimant's work activities over the course of employment. The administrative law judge (ALJ) set aside employer's denial. The ALJ concluded that “claimant's preexisting osteoarthritis in his right shoulder contributed to his right shoulder rotator cuff tear. This is a combined condition claim.” The ALJ went on to conclude that claimant had established an “otherwise compensable injury” under ORS 656.266(2) with respect to his right shoulder rotator cuff tear. The board issued an order adopting and affirming the ALJ's order. Neither party sought review and that order became final. ORS 656.295(8).

In November 2006, claimant had surgery for a right rotator cuff tear and a distal clavicle excision. After a closing exam, claimant's surgeon concluded that claimant was medically stationary and recommended claim closure. Accordingly, employer issued an updated notice of acceptance at closure, accepting a disabling right shoulder strain and right shoulder rotator cuff tear. Employer also issued a notice of closure, awarding claimant time loss benefits and percent unscheduled permanent partial disability (PPD).

Claimant requested reconsideration, arguing, among other things, that the notice of closure incorrectly apportioned his impairment findings. The appellate review unit entered an order on reconsideration that, while modifying other components of claimant's compensation, affirmed the percent unscheduled PPD. Claimant requested 16 a hearing.

Before the ALJ, claimant argued that the apportionment of the range of motion value was improper under OAR 436–035–0014(1)(c),² because employer had accepted a combined condition and had not issued a major contributing cause denial for the preexisting condition. In affirming the order on reconsideration, the ALJ reasoned that, as a matter of law, employer had accepted a combined condition, because the board's prior order concluded that claimant had a combined condition and that order had become final. Because employer had not issued a major contributing cause denial, the ALJ also determined that claimant was entitled to have impairment rated for his total combined condition. Nonetheless, the ALJ concluded that the medical arbiter's opinion required that claimant's range of motion findings should be apportioned. Additionally, the ALJ concluded that claimant was not entitled to a greater award of unscheduled PPD because of social vocational factors, reasoning that claimant had returned to his job at the time of injury.

Claimant requested board review. Employer argued that it had not accepted a combined condition because it had not been expressly ordered to accept a combined condition. Instead, employer argued that it had accepted only a right shoulder rotator cuff tear; therefore, claimant was not entitled to have impairment rated for his total combined condition, i.e., his rotator cuff tear and his preexisting osteoarthritis. The board agreed with the ALJ that employer had accepted a combined condition and that claimant was entitled to have impairment values for those findings of impairment caused by his entire combined condition. However, the board nonetheless determined that claimant was not entitled to impairment values for findings of impairment due to unaccepted conditions that had not been included within the “combined condition” acceptance. The board modified the award by reducing claimant's impairment and awarding claimant social vocational factors, ultimately increasing claimant's unscheduled PPD award. Employer petitioned for judicial review.

We begin with employer's first two assignments of error, which are congruent. Employer explains that it does not dispute the award of PPD to claimant. However, employer argues that the board incorrectly concluded that, as a matter of law, employer had accepted a combined condition. Claimant responds that employer's petition for judicial review is not justiciable because it raises concerns about hypothetical future events rather than presenting a current claim or controversy. Additionally, claimant argues that the board correctly determined that employer had accepted a combined condition.

We begin with the issue of justiciability. A justiciable controversy exists when the interests of the parties to the action are adverse and the court's decision in the matter will have some practical effect on the rights of the parties to the controversy. Brumnett v. PSRB, 315 Or. 402, 405–06, 848 P.2d 1194 (1993). Here, employer contends that it has not accepted a combined condition; rather, it has accepted two compensable conditions: claimant's right shoulder strain and right shoulder rotator cuff tear. Employer argues that this case is justiciable, because its responsibilities with respect to managing claimant's claims differ depending on a proper characterization of the claim.

We agree with employer that this case is justiciable. The rules for processing the claim depend on its characterization. Compare ORS 656.268(1)(a) (authorizing claim closure when “[t]he worker has become medically stationary and there is sufficient information to determine permanent disability”), with ORS 656.268(1)(b) (authorizing claim closure when “[t]he accepted injury is no longer the major contributing cause of the worker's combined or consequential condition or conditions pursuant to ORS 656.005(7)”).³See also ORS 656.262(7)(b) (“Once a worker's claim has been accepted, the insurer or self-insured employer must issue a written denial to the worker when the accepted injury is no longer the major contributing cause of the worker's combined condition before the claim may be closed.”). Which conditions employer accepted and whether the conditions are accepted as a...