MATTER OF JESUS, 57 Van Natta 566 (Or. Work. Comp. 3/9/2005)
| Decision Date | 09 March 2005 |
| Docket Number | WCB Case No. 03-08819. |
| Parties | In the Matter of the Compensation of JOHN P. DE JESUS, Claimant. |
| Court | Oregon Workers' Compensation Division |
Reviewing Panel: Members Langer, Bock, and Kasubhai. Board Chair Bock concurs. Board Member Kasubhai dissents.
The self-insured employer requests review of that portion of Administrative Law Judge (ALJ) Crummé`s order that set aside its "combined and current condition denial for advanced right shoulder global arthritis with large areas of anterior, posterior and inferior osteophytosis and instability." On review, the issue is compensability. We reverse in part and affirm in part.
We adopt the ALJ's findings of fact with the following changes. In the sixth full paragraph on page 2, we change the first date to "September 11, 2002." (Ex. A). We delete the first paragraph on page 5.
In 1989, claimant injured his right shoulder while he was in the Marines and he underwent a "Bankart" surgical procedure. (Ex. D). In 1991, claimant slipped on some ice and injured his right shoulder again. He underwent another surgery with a Bankart procedure. Claimant did well after that surgery and did not have shoulder problems, although he had some limitations in elevation. (Tr. 5, Exs. D, F, 3-2, 3-10, 3I).
In early 2000, claimant began working for the employer as a police officer. (Ex. A). On September 3, 2002, claimant injured his right shoulder while going through an obstacle course during his work for the employer. (Exs. C, F, and 3-2). The employer accepted a right shoulder injury claim.1
Claimant has been treated by Drs. Brenneke, Crawford and Orfaly. On January 21, 2003, Dr. Brenneke performed arthroscopic surgery and his post-surgical diagnosis was synovitis and degenerative joint disease. (Ex. M).
Claimant's symptoms did not improve and he was referred to Dr. Crawford, who performed further right shoulder surgery. (Ex. 1C). Dr. Crawford's post-surgical diagnosis was right shoulder osteoarthritis.
On October 2, 2003, claimant asked the employer to expand its acceptance to include a combined condition with his "pre-existing condition of osteoarthritis and/or degenerative arthritis and/or post capsulorraphy arthritis and his industrial injury, such that he required an open celiectomy and capsular shift." (Ex. 3BB).
On October 31, 2003, the employer issued an updated Notice of Acceptance to "include an initial combining effect of your injury and preexisting conditions[.]" (Ex. 3D). The accepted condition was acute, musculoligamentous right shoulder strain combined with pre-existing, advanced right shoulder glenohumeral arthritis, large areas of anterior, posterior and inferior osteophytosis and instability. (Id.)
Claimant had continuing posterior shoulder pain and was referred to Dr. Orfaly. In November 2003, Dr. Orfaly said that claimant's arthrogram showed severe osteoarthritis with multiple osteophytes, a type II SLAP lesion and rotator cuff tendinopathy. (Ex. 3F). Dr. Orfaly performed surgery in December 2003, which included a partial replacement of the right shoulder. (Tr. 6-8).
On December 5, 2003, the employer issued a "combined and current condition denial for advanced right shoulder global arthritis with large areas of anterior, posterior and inferior osteophytosis and instability." (Ex. 4).
At hearing, claimant explained that he was contesting the denial and requesting penalties for the employer's allegedly unreasonable denial. (Tr. 1). No other issues were raised.
The ALJ concluded that claimant's September 3, 2002 injury affected his preexisting right shoulder arthritic condition and had been the major cause of his disability and need for treatment relating to that combined condition. The ALJ rejected the employer's argument that claimant had to first request acceptance of his arthritic conditions. The ALJ reasoned that claimant may initiate a claim for a new or omitted medical condition at any time, and said that the employer's acceptance of one combined condition did not prevent claimant from requesting the acceptance of another combined condition. The ALJ concluded that the resolution of claimant's accepted strain did not preclude him from arguing that the work injury worsened his preexisting conditions and that the work injury had been the major cause of that combined condition.
The ALJ did not address claimant's argument that his current combined condition was compensable because the record did not prove that his accepted strain and preexisting conditions had changed since the combined condition was accepted by the employer. The ALJ reasoned that it was not necessary to address that argument because the claim was compensable based on the injury causing a worsening of his preexisting conditions.
On review, the employer argues that claimant never made a claim for a worsened preexisting right shoulder condition. Instead, claimant merely asked the employer to accept a combined condition, which it did. (Ex. 3D). In any event, the employer argues that the medical evidence suggests no more than a symptomatic flare-up of arthritis.
If a claimant believes that a condition has been incorrectly omitted from the notice of acceptance, claimant must first communicate the objections in writing to the carrier before the issue may be addressed by the Board. See ORS 656.262(6)(d) (2001); ORS 656.267(1) (2001);2 Thomas M. Thorson, 55 Van Natta 2066, 2067 (2003).
Here, there is no evidence that claimant filed a new or omitted medical condition claim for a worsened preexisting right shoulder arthritic condition. Although claimant may initiate a claim for a new or omitted medical condition at any time, the only additional claim made by claimant was one for a combined condition, which was accepted. (Ex. 3D). We find no evidence that claimant requested acceptance of any additional conditions involving his right shoulder. At hearing, claimant only challenged the employer's denial and raised a penalty issue.
An ALJ's scope of review is limited to the issues raised by the parties. E.g., James P. Andrews, 55 Van Natta 3499, 3501 (2003). Because claimant challenged the employer's denial and raised a penalty issue, the ALJ should not have addressed a claim for a worsened preexisting right shoulder arthritic condition. Compare Weyerhaeuser Co. v. Bryant, 102 Or App 432, 435 (1990) (). Here, we confine our review to the issue framed by the parties at hearing.
At hearing, claimant relied on Christopher R. Holland, 55 Van Natta 4072 (2003), to argue that his current combined condition was compensable because the record did not prove that his accepted strain and preexisting conditions had changed since the employer accepted a combined condition.
Under ORS 656.262(6)(c), a carrier may deny an accepted combined condition if the otherwise compensable injury ceases to be the major contributing cause of the combined condition. The "effective date" of the combined condition acceptance determines the "base line" for determining major contributing cause or whether there has been a change in claimant's condition or a change in circumstances to justify a denial under ORS 656.262(6)(c). Susan K. Lathrom, 56 Van Natta 2393 (2004); John H. Dixon, 56 Van Natta 1124 (2004).
Here, the employer's October 31, 2003 amended acceptance said that it was "amending the acceptance of your workers' compensation claim to include an initial combining effect of your injury and preexisting conditions as captioned above." (Ex. 3D). The combined condition acceptance referred to "an initial combining effect," which we interpret as referring back to the original date of injury. See Marsha C. King, 56 Van Natta 3072, 3075 (2004) (). Therefore, the relevant dates for determining whether there has been any "change" in claimant's condition are September 3, 2002 and the denial date of December 5, 2003. See John J. Aschmeller, 54 Van Natta 743, 745 (2002).
Next, we determine whether there was a "change" in claimant's circumstances or condition such that the otherwise compensable injury is no longer the major contributing cause of the combined condition. E.g., Ruben J. Conley, 56 Van Natta 1437, on recon 56 Van Natta 2205 (2004).
On review, claimant argues that the employer did not demonstrate that the accepted combined condition is no longer caused in major part by the accepted injury.
The accepted combined condition was acute, musculoligamentous right shoulder strain combined with preexisting, advanced right shoulder glenohumeral arthritis, large areas of anterior, posterior and inferior osteophytosis and instability. (Ex. 3D). For the following reasons, we find that the medical evidence establishes that there was a "change" in claimant's circumstances or condition such that the otherwise compensable injury is no longer the major contributing cause of the combined condition.
On May 19, 2003, Dr. Brenneke stated that claimant's muscular shoulder strain had "run its course." (Ex. 1). On June 27, 2003, he reported that the right shoulder strain was medically stationary. (Ex. 2).
Although Dr. Brenneke subsequently said that claimant's injury was the major cause of his need for treatment (Ex. 3A), there is no evidence that he believed claimant continued to have a combined right shoulder strain. Instead, Dr. Brenneke said that the strain understated claimant's pathology. (Ex. 1). When he performed surgery in January 2003, Dr. Brenneke's postoperative diagnosis was synovitis and degenerative joint disease. (Ex. M). In late February 2003, he said claimant's symptoms suggested instability and some mechanical disturbance in the...
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