Rouse v. FMC Corp. Marine-Rail

• Decision Date: 03 February 1993
• Docket Number: MARINE-RAI,R
• Citation: 118 Or.App. 25,846 P.2d 429
• Parties: In the Matter of the Compensation of James A. Rouse, Claimant. James A. ROUSE, Petitioner, v. FMC CORP.espondent. 89-25719; CA A72479.
• Court: Oregon Court of Appeals

Page 429

846 P.2d 429

118 Or.App. 25

In the Matter of the Compensation of James A. Rouse, Claimant James A. ROUSE, Petitioner, v. FMC CORP. MARINE-RAIL, Respondent.

89-25719; CA A72479.

Court of Appeals of Oregon.

Argued and Submitted May 18, 1992.

Decided Feb. 3, 1993.

Douglas D. Hagen, Portland, argued the cause and filed the brief, for petitioner.

Karen O'Kasey, Portland, argued the cause, for respondent. With her on the brief was Schwabe, Williamson & Wyatt, Portland.

Before RICHARDSON, C.J., and DEITS and DURHAM, JJ.

DEITS, Judge.

Claimant seeks review of a Workers' Compensation Board order that held that employer had not accepted claimant's personality disorder as a compensable condition. We reverse.

While working for employer in 1979, claimant sustained a compensable injury to his right knee. He had surgery and returned to work. Determination orders issued in 1980 and 1981 awarding him temporary total disability (TTD) and permanent partial disability (PPD). In early 1982, claimant was examined by several doctors who, in addition to diagnosing orthopedic disorders, also diagnosed depression, a conversion disorder and a pain disorder, all of which were related to his compensable injury. Another determination order of October, 1982, awarded no additional PPD. In response to the 1982 medical reports, employer filed Form 1502 with the Department of Insurance and Finance stating, "Accepting as non-disabling aggravation--psychiatric problems." On November 3, employer sent claimant's attorney a letter informing him that it had processed Form 1502 and had accepted claimant's "psychiatric treatment." ¹ The 1981 determination order was then set aside, and employer reclassified the aggravation claim as disabling.

Claimant received psychiatric treatment from Dr. Watkins from December, 1982, to August, 1983, and employer paid for those treatments. Watkins diagnosed a dysthymic disorder and a mixed personality disorder, the latter of which was not related to claimant's compensable condition. ²

In June, 1983, claimant injured his right foot after his knee gave out on some stairs. The injury was accepted as an aggravation of the 1979 injury. A determination order issued in February, 1985, awarding TTD and additional PPD. In 1988, claimant was admitted to a hospital for withdrawal from narcotics. He informed a doctor at a methadone center that he had been using heroin since 1980. The parties do not dispute that the major contributing cause of the drug relapse was claimant's personality disorder. A determination order of September 5, 1989, awarded claimant TTD, but no additional PPD.

Claimant sought a hearing on the September, 1989, determination order, contending that he was permanently and totally disabled as a result of the injuries and his psychiatric condition. The referee held that claimant was not entitled to PTD or to additional PPD. Claimant appealed to the Board, arguing that his claim had been prematurely closed, because his doctors continued to recommend psychiatric and drug dependency treatment and employer had accepted the preexisting personality disorder when it accepted his "psychiatric problems." The Board affirmed, holding that employer had not previously accepted his personality disorder. It concluded that claimant's work injury did not materially contribute ³ to his relapse into drug addiction and that claimant had failed to establish his entitlement to PTD or to additional PPD.

On review, claimant argues that his claim was prematurely closed and that the Board erred in not considering his personality disorder in deciding whether he was medically stationary at the time of claim closure. He contends that employer accepted his personality disorder in 1982 by accepting his "psychiatric problems."

In holding that employer did not accept claimant's personality disorder when it accepted his "psychiatric problems," the Board said:

"Here, claimant had several diagnosed psychiatric disorders when the employer accepted claimant's psychiatric problems. * * * Because there was more than one psychiatric disorder, we cannot determine that the underlying personality disorder was specifically accepted. See Johnson v. Spectra Physics, 303 Or 49 (1987). See also Kenneth L. Orr, 43 Van Natta 1432 (1991).

"Because we do not find that the employer specifically accepted the personality disorder, we do not consider this condition in determining whether claimant was psychiatrically medically stationary at claim closure."

Georgia-Pacific v. Piwowar, 305 Or. 494, 753 P.2d 948 (1988), involved a similar issue. In Piwowar, the employer accepted the claimant's claim for a "sore back." It then denied the compensability of the disease that had caused the condition. The Supreme Court held that, when the employer accepted the claim for a sore back, its acceptance was broad enough to include any possible cause of that condition. Therefore, it had accepted the compensability of the disease....