Shearer's Foods v. Hoffnagle (In re Hoffnagle)

Decision Date19 April 2017
Docket NumberA157714
Citation395 P.3d 622,284 Or.App. 859
Parties In the Matter of the Compensation of William W. Hoffnagle, Claimant. SHEARER'S FOODS, Petitioner, v. William W. HOFFNAGLE, Respondent.
CourtOregon Court of Appeals

Jerald P. Keene, Portland, argued the cause for petitioner. With him on the briefs was Oregon Workers' Compensation Institute, LLC.

Julene M. Quinn, Albany, argued the cause and filed the brief for respondent.

Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

GARRETT, J.

The question in this case is whether the Workers' Compensation Board erred when it concluded that employer accepted a condition concerning an original injury in the context of a letter denying a new injury. Employer argues that the board's reasoning is flawed because the letter at issue was clearly, unambiguously, and exclusively a denial—not an acceptance of anything. We conclude that, under the circumstances, the board could reasonably disagree. Accordingly, we affirm.

We take the facts from the board's September 3, 2014, order on reconsideration. Claimant slipped and fell at work on June 7, 2012. On August 1, 2012, employer accepted a claim for a left hip strain. Several weeks later, on September 10, claimant was working when he felt a pop and a sharp pain in his lower back. Claimant filed a claim for a new injury (lower back strain) as well as a "Form 827" reporting an aggravation of his June 2012 injury.

In late September, claimant had a telephone conversation with employer's claims adjuster, who said that employer would be issuing a denial of the new injury but that it "would not matter" because claimant would receive benefits under his June 2012 injury. Employer sent a letter on October 1, 2012, that stated:

"You filed a claim for a lower back injury that occurred on 9/10/12 while you were employed with [employer]. After careful review of the information in our file, it does not appear that you sustained a new injury on that date. Rather, the current condition appears to relate to your prior injury that occurred 6/12. Thus, we hereby issue a denial of the new injury. All benefits will be paid on your prior claim. "

(Emphasis added.)

The October 2012 letter also included the statement of hearing rights that is required for a denial under OAR 438-005-0055(1). It did not include the information required for notices of acceptance under ORS 656.262(6)(b) and OAR 436-060-0140(4).1

Claimant did not request a hearing regarding the denial. As he later testified, he believed, on the basis of his conversation with the claims adjuster, that his back conditions would be accepted.

In March 2013, claimant filed a new/omitted medical condition claim for "L4-5 and L5-S1 disc protrusion/ bulge/herniation with left leg radicular symptoms and sciatica; and lumbar strain." Employer denied the claim, asserting that the conditions were not due to the June 2012 injury. Claimant requested a hearing.

On July 2, 2013, employer issued an amended notice of acceptance concerning the June 2012 injury that identified the accepted condition as "left hip contusion /strain and left gluteal soft tissue contusion, combined with preexisting, noncompensable, lumbar spondylosis (effective 6/7/12)." The next day, July 3, employer denied the accepted combined condition on the ground that the compensable condition had ceased to be the major contributing cause of the disability and need for treatment. See ORS 656.262(6)(c) ("An insurer's or self-insured employer's acceptance of a combined or consequential condition under ORS 656.005(7) * * * shall not preclude the insurer or self-insured employer from later denying the combined or consequential condition if the otherwise compensable injury ceases to be the major contributing cause of the combined or consequential condition.").

At a hearing regarding both the March and the July denials, claimant argued that the March denial was an improper "back-up" denial2 under ORS 656.262(6)(a), because employer had previously accepted claimant's current back conditions in its October 2012 letter to claimant. See ORS 656.262(6)(a) ("Once the claim is accepted, the insurer or self-insured employer shall not revoke acceptance except as provided in this section."); City of Grants Pass v. Hamelin , 212 Or.App. 414, 417, 157 P.3d 1206 (2007) ( "When a claim has been accepted pursuant to ORS 656.262(6)(a), there are only two grounds on which it may be revoked: (1) fraud, misrepresentation, or other illegal activity by the worker; and (2) later-obtained evidence showing that the claim is not compensable or is not the responsibility of the accepting insurer."). The administrative law judge (ALJ) sided with employer, reasoning that the October 2012 letter was solely a denial of the September 2012 injury and did not accept any conditions related to the June 2012 injury, and, therefore, it was not a bar to employer's March 2013 denial of claimant's new/omitted medical conditions. The ALJ also concluded that the June 2012 injury had caused "otherwise compensable" low back conditions that combined with a preexisting condition. On the basis of expert medical evidence from Drs. Bergquist and Rosenbaum, the ALJ finally concluded that the otherwise compensable injury had ceased to be the major contributing cause of claimant's disability or need for treatment of the combined condition. Accordingly, the ALJ upheld the denials issued by employer in March and July 2013.

On review, the board took a different approach. The board explained, first, that it viewed the October 2012 letter as an acceptance of claimant's lower back conditions—specifically, lumbar strain and L4-5 and L5-S1 disc conditions with left leg radicular symptoms and sciatica—in connection with the June 2012 injury, albeit within the context of a letter denying a new September 2012 injury. Thus, the board reversed the ALJ's order insofar as it upheld employer's March 2013 denial of those new/omitted medical conditions.

Turning to employer's July 2013 denial of the current combined condition, the board then explained that it was not persuaded by Bergquist and Rosenbaum, the medical experts on whom the ALJ had relied, because they had failed to account for the L4-5 and L5-S1 disc conditions as part of the "otherwise compensable injury." Concluding that employer had therefore failed to carry its burden to show that the otherwise compensable injury had ceased to be the major contributing cause of the combined condition, the board reversed the ALJ's order insofar as it upheld employer's combined condition denial.

On judicial review, the parties agree that the question before us reduces to whether the board erred when it concluded that the October 2012 letter constituted an acceptance of claimant's L4-5 and L5-S1 disc conditions. That conclusion was the predicate for the board's determination that Bergquist and Rosenbaum were not persuasive; the board articulated no other reason for discrediting their opinions. Employer identifies no error other than the board's conclusion regarding the October 2012 letter, which, according to employer, infected the rest of the board's reasoning. Thus, the board's treatment of that letter is dispositive.

The board determined that the October 2012 letter had "accepted" claimant's low back condition—specifically, again, lumbar strain and L4-5 and L5-S1 disc conditions with left leg radicular symptoms and sciatica—in connection with the original June 2012 injury. The board reasoned:

"The October 2012 letter unambiguously stated that claimant's ‘current condition’ related to his June 7, 2012 injury. The letter further expressly provided that [a]ll benefits will be paid on your prior claim.’ Finally, the employer's letter stated that claimant had not sustained a new injury on September 10, 2012, and that it was denying the new injury. It included the statement of hearing rights required for a denial under OAR 438-005-0055(1), but not the information required for notices of acceptance under ORS 656.262(6)(b)(B)-(E) and OAR 436-060-0140 [ (4) ](b)-(h).
"A single document may function as both an acceptance and a denial. See Stockdale v. SAIF , 192 Or.App. 289 (2004) (carrier may accept a combined condition and deny the compensability of the same condition under ORS 656.262(6)(c) and (7)(b) in the same document). The employer argues, however, that neither the text nor the format of the October 2012 letter convey that it actually accepted the low back conditions. Nevertheless, the letter explained that its denial of a new injury, dated September 10, 2012, was based on the fact that claimant's ‘current condition’ was related to the accepted June 7, 2012 injury. Moreover, the employer unequivocally represented that [a]ll benefits will be paid on your prior claim.’ We agree with claimant's interpretation of this document as accepting his then-current lower back conditions under the June 7, 2012 injury."

(First and fourth brackets in original.) The board went on to explain that, although employer was correct that the October 2012 letter did not contain certain information that is required by statute and rule to be included within a notice of acceptance, the omission of such "magic words" was not dispositive. The relevant question, the board reasoned, is whether the notice contains "any language" indicating acceptance:

"Here, * * * the disputed letter included specific language indicating that claimant's current condition related to the June 7, 2012 injury. Moreover, in the letter, the employer expressly represented that [a]ll benefits would be paid on your claim.’ Under these circumstances, despite the absence of certain required information, we are persuaded that the employer's intention, as expressed in its October 1, 2012 letter, was to accept claimant's ‘lower back injury’ under his previously accepted claim."

(Brackets in original.)

On review, employer generally reprises its arguments below, identifying several factors that,...

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1 cases
  • Shearer’s Foods v. Hoffnagle (In re Hoffnagle)
    • United States
    • Oregon Supreme Court
    • June 21, 2018
    ...on review. FLYNN, J.We previously denied employer's petition for review in this workers' compensation case, Shearer's Foods v. Hoffnagle , 284 Or.App. 859, 395 P.3d 622, rev. den. , 361 Or. 866, ––– P.3d –––– (2017), and now address claimant's petition for an award of attorney fees for time......

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