MATTER OF JOHNSON, 55 Van Natta 1266 (Or. Work. Comp. 4/7/2003), WCB Case No. 02-02409.
| Decision Date | 07 April 2003 |
| Docket Number | WCB Case No. 02-02409. |
| Parties | In the Matter of the Compensation of JULIE L. JOHNSON, Claimant. |
| Court | Oregon Workers' Compensation Division |
Claimant requests review of Administrative Law Judge (ALJ) Podnar's order that upheld the insurer's de facto denial of a consequential right knee chondromalacia condition. On review, the issues are jurisdiction, and, potentially, compensability. We vacate.
We adopt the ALJ's "Findings of Fact" with the following supplementation.
Claimant's claim is in "Own Motion" status. (Ex. 28). On December 3, 2001, claimant requested that the insurer accept claimant's claim for right knee chondromalacia as a consequence of the accepted left knee conditions. (Ex. 30).
On March 26, 2002, claimant requested a hearing on the insurer's de facto denial of the alleged consequential right knee condition. A hearing was convened on June 24, 2002 and the record closed on October 30, 2002.
The ALJ was not persuaded that claimant's compensable left knee condition was the major contributing cause of her right knee chondromalacia condition and need for treatment. Accordingly, the ALJ held that the claim would remain in denied status.
On review, claimant contends that she has established the compensability of her consequential right knee condition through the persuasive opinion of her treating surgeon, Dr. Cook. We do not decide the merits of the compensability dispute because we conclude that we lack appellate jurisdiction to do so.
The issue in this case involves the compensability of a new medical condition involving the right knee, which allegedly arose as the consequence of claimant's 1979 left knee injury. Claimant's aggravation rights regarding the underlying November 1979 claim expired in June 1986, five years after the first claim closure in June 1981. ORS 656.273. (See Exs. 3-2, 7-1, 16-1, 28).
Although not discussed by either party, the threshold question posed by these facts is whether the Hearings Division had subject matter jurisdiction over the claim. Subject matter jurisdiction cannot be waived by the parties or the Board. Earl F. Goodmanson, 52 Van Natta 1347 (2000); Bill D. Coleman, 48 Van Natta 2154 (1996). Even if not raised by the parties, when presented by the record, it is our duty to consider the point on our own motion. Southwest Forest Industries v. Anders, 299 Or 205 (1985).
In Pamela A. Martin, 54 Van Natta 1852 (2002), we applied amended ORS 656.267 and 656.278(1)(b) and held that the Hearings Division lacked jurisdiction to resolve a "non-medical service" dispute regarding a "post-aggravation rights" new medical condition claim. We noted that, under prior case law, a new or omitted medical condition claim must be processed under ORS 656.262 and 656.268, even if the aggravation rights on the initial claim had expired. See Larry L. Ledin, 52 Van Natta 680 (2000), aff'd SAIF v. Ledin, 174 Or App 61 (2001); Johansen v. SAIF, 158 Or App 672, adhered to on recon, 160 Or App 579, rev den 329 Or 528 (1999). The 2001 legislature, however, amended ORS 656.267 and 656.278(1)(b), which affect Own Motion claims and "post-aggravation rights" new or omitted medical condition claims. Specifically, pursuant to amended ORS 656.267(3), new or omitted medical condition claims initiated after expiration of aggravation rights must be processed as requests for Own Motion relief pursuant to amended ORS 656.278(1)(b).
Relying on James J. Kemp, 54 Van Natta 491 (2002), we reiterated that the amendments to ORS 656.267 and 656.278(1)(b) were effective on January 1, 2002, applied to all claims regardless of the date of injury, and were intended to apply retroactively to pending Own Motion claims, provided that any previous processing of the claim under prior case law had not become final. Because the processing of the "post-aggravation rights" new medical condition claim in Martin had not become final, we concluded that the claim was subject to amended ORS 656.267 and 656.278(1)(b). As such, the Hearings Division did not have jurisdiction over the dispute and we dismissed the claimant's hearing request, noting that authority over the dispute rested with the Board under its Own Motion jurisdiction pursuant to amended ORS 656.278(1)(b). Martin at 1858; see also David J. Albano, 54 Van Natta 2079 (2002) ().
We reach the same conclusion in this case. Claimant is seeking the acceptance of a "post-aggravation rights" new medical condition. As we discussed in Martin and Kemp, the amendments to ORS 656.267 and 656.278(1)(b) were effective on January 1, 2002. Claimant's "post-aggravation rights" new...
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