O'Neal v. Sisters of Providence

• Decision Date: 08 July 1975
• Citation: 22 Or.App. 9,537 P.2d 580
• Parties: In the Matter of the Compensation of Margaret O'Neal, Claimant. Margaret O'NEAL, Respondent, v. SISTERS OF PROVIDENCE, Appellant.
• Court: Oregon Court of Appeals

Page 580

537 P.2d 580

22 Or.App. 9

In the Matter of the Compensation of Margaret O'Neal, Claimant Margaret O'NEAL, Respondent, v. SISTERS OF PROVIDENCE, Appellant.

Court of Appeals of Oregon.

Argued and Submitted May 19, 1975.

Decided July 8, 1975.

Mark H. Wagner, Portland, argued the cause for appellant. With him on the brief were Michael D. Hoffman and Souther, Spaulding, Kinsey, Williamson & Schwabe, Portland.

Peter C. Davis, Portland, argued the cause for respondent. With him on the brief were Merten & Saltveit, Portland.

Before SCHWAB, C.J., and LANGTRY and FOLEY, JJ.

FOLEY, Judge.

The Sisters of Providence, operators of St. Vincent Hospital (employer), appeal from a circuit court order affirming a Workmen's Compensation Board order. The Board reversed a hearings referee and held that claimant was entitled to compensation for leg muscle problems which were attributed in party to her employment.

The essence of employer's position is that claimant's claim is not compensable because it is not work-related or because it repressented the continuation of a condition for which a claim was accepted and closed by a determination order, dated June 7, 1972, which did not award any permanent disability and which was not appealed.

At the time of the hearing, claimant was 51 years old and had worked as a maid at St. Vincent Hospital since December 1970. Her job required that she push a maid's cart over carpeted halls. The cart was four feet high and four feet long and was loaded with various cleaning materials, a garbage sack, mops and a bucket. There is no exact evidence as to the total weight of the cart; claimant testified that bucket and mop weighed nearly 50 pounds, and that the remainder of the cart weighed at least as much. The cart had 10-inch casters to make it roll easily.

Claimant began having difficulty with her legs in March 1971. A medical examination on July 30, 1971, revealed varicose veins, some phlebitis, and strain in the muscles of both legs. Claimant filed a workman's compensation claim on September 21, 1971, which stated that pushing and pulling the maid's cart over carpeting for the previous six months caused strain in her knees and legs.

On November 24, 1971, the employer notified claimant that its investigation revealed that she suffered 'from two separate ailments, namely varicose veins and a leg muscle strain. * * *' The employer denied responsibility on the varicose vein problem but accepted the claim on the muscle strain. (It appears that the references in the medical reports to muscle 'strain' and muscle 'spasms' are references to the same general condition.)

Claimant returned to work after her initial 1971 period of disability. She had surgery for her varicose veins in July 1972, and again returned to work.

A determination order issued June 7, 1972, awarded claimant temporary total disability, but no permanent partial disability, for her leg strain disability of 1971. Claimant did not appeal either the denial of responsibility for the varicose veins or the determination order.

Although the pain in her legs persisted, claimant continued working. By November of 1973, however, she began having to take rest breaks, during which she raised her legs to relieve her pain. On February 7 or 8, 1974, Dr. Robert E. Rinehart, claimant's treating physician, ordered her to stop working. It is his opinion that her work conditions are a material cause of her leg muscle spasms. On June 28, 1974, claimant filed her second claim for spasms of her leg muscles. The employer denied the claim, leading to the current litigation.

The hearings referee denied claimant compensation for both the leg varicose vein problems and the leg muscle spasms, finding that she had not established '* * * a new injury or occupational disease claim. * * *' The Board affirmed the referee regarding claimant's varicose veins but reversed the referee in regard to the muscle spasms, finding that their presence in 1974 constituted a 'new claim.' The Board ordered the employer 'to accept claimant's occupational disease claim for muscle strains in both her legs as a new injury February, 1974.'

Some confusion exists in this case because of a failure, on the part of claimant, employer, and the hearings referee, to clearly distinguish between a 'compensable injury' and an 'occupational disease.' Claimant testified that her leg problems had been continuing for four years and that the condition which bothered her in 1974 was the same as that of 1971. The employer points to this testimony, and claimant's testimony in which she describes her 1971 symptoms and 1974 symptoms in similar terms, contending that claimant suffered to 'new injury or occupational disease' in 1974, and was precluded from relitigating the 1972 determination order on the initial claim because him limitations for appeal had passed.

Claimant at the hearing expressly abandoned any claim for aggravation under ORS 656.273. Thus her claim is compensable only if it fulfills the requirements of a compensable injury or an occupational disease.

Since claimant's symptoms by her own testimony were the same from 1971 to 1974, we agree with the employer's contention that if her 1974 condition is an injury, it would not constitute a 'new' injury and would not be compensable. Our ultimate decision as to compensability therefore turns on whether claimant's condition more properly falls into an occupational disease category.

ORS 656.802(1)(a) defines 'occupational disease' ¹ as:

'Any disease or infection which arises ot of and in the scope of the employment, and to which an employe is not ordinarily subjected or exposed other than during a period of regular actual employment therein.'

ORS 656.002(7)(a) provides:

'A 'compensable injury' is an accidental injury * * * arising out of and in the course of employment requiring medical services or resulting in disability or death; an injury is accidental if the result is an accident, whether or not due to accidental means.'

The Supreme Court has discussed the distinction between occupational diseases and injuries in reference to earlier statutory schemes (Repealed, Oregon Laws 1973, ch. 543, § 4) which provided different procedures for processing occupational disease claims:

'One who claims that he is afflicted with an occupational disease has undergone experiences substantially different from those of another workman who is the victim of an industrial accident. An occupational disease is stealthy and steals upon its victim when he is unaware of its presence and approach. Accordingly, he cannot later tell the day, month or possibly even the year when the insidious disease made its intrusion into his body. Although his weakened condition may manifest ill health its cause may be uncertain and puzzle even the most skillful of physicians. Upon the other hand, the victim of an industrial accident virtually always can tell the day and even the hour when the purported injury befell him. He does not attribute his present condition to something that crept in upon him unobserved but to an accident which he and possibly many others observed. * * *' White v. State Ind. Acc. Com., 227 Or. 306, 322, 362 P.2d 302, 309 (1961).

Legislative amendments to the Occupational Disease Law (Oregon Laws 1973, ch. 543) have brought occupational disease claims fully within the Workmen's Compensation Law and, as ORS 656.802 to 656.824 reveal, in general, treat occupational disease claims in the same manner as injury claims. In addition, the definitions of 'occupational disease' and 'compensable injury' are similar in several respects. Both relate to a condition arising out of and in the scope or course of employment. Further, ORS 656.804, provides:

'An occupational disease * * * is considered an injury for employes of employers who have come under * * * (the Workmen's Compensation Law).'

Finally, the procedure for processing occupational disease claims is the same as that for accidental injuries. ORS 656.807(4).

Larson points out that with the expansion of occupational disease legislation (as has occurred in Oregon) ² the 'contrast between accident and occupational disease is gradually losing its importance * * *.' 1A Larson, Workmen's Compensation Law § 41.31 (1973).

Yet in Oregon an occupational disease continues to be distinguished from a compensable injury in that the former must be a 'disease or infection,' ORS 656.802(1)(a), whereas the latter must constitute an 'accidental injury.' ORS 656.002(7)(a). The statutory treatment of times for filing a claim...