Short v. State Acc. Ins. Fund Corp.
Decision Date | 21 May 1986 |
Citation | 79 Or.App. 423,719 P.2d 894 |
Parties | In the Matter of the Compensation of Lee E. Short, Claimant, Lee E. SHORT, Petitioner, v. STATE ACCIDENT INSURANCE FUND CORPORATION and Mt. Hood Hotel, Respondents. WCB 83-00025; CA A35087. |
Court | Oregon Court of Appeals |
Richard A. Sly, Portland, argued the cause for petitioner. With him on the brief was Bloom, Marandas & Sly, Portland.
Darrell E. Bewley, Asst. Atty. Gen., Salem, argued the cause for respondents. On the brief were Dave Frohnmayer, Atty. Gen., James E. Mountain, Jr., Sol. Gen., and Ann F. Kelley, Asst. Atty. Gen., Salem.
Before RICHARDSON, P.J., and WARDEN and NEWMAN, JJ.
Claimant seeks review of a Workers' Compensation Board order which modified the referee's order in these respects: (1) It found that claimant had proved a worsening as of March 30, 1983, rather than September 29, 1982; (2) it reduced the penalties and attorney fees assessed against SAIF for delay in paying interim compensation; (3) it reversed the assessment of penalties for SAIF's delay in denying the claim; and (4) it increased the attorney fees awarded to claimant's attorney for prevailing on the denied claim. Claimant asserts that (1) she has proved a worsening as of March 12, 1981, (2) the referee correctly assessed penalties and attorney fees and (3) the Board awarded insufficient attorney fees to her for prevailing on the claim denial. We modify the order to provide that claimant has proved a worsening as of September 1, 1982, and reverse the Board and reinstate the referee's order with respect to penalties and attorney fees for late denial and late payment of interim compensation.
Claimant suffered a compensable occupational injury on February 1, 1977, when she fell down a flight of stairs and struck her head. The claim was closed in July, 1979, and she was awarded 35 percent unscheduled disability for her neck and "mild" psychological conditions. There was no diagnosis of an organic brain injury at that time.
Howieson prescribed regular supportive counseling with a trained professional. "Without treatment, her prognosis for improvement in functioning is guarded at best."
In response to questions by claimant's attorney, Howieson stated:
Claimant's daughter and a neighbor testified to a worsening of claimant's symptoms since the original claim closure. They could not pinpoint any specific date of worsening but described a gradual worsening.
SAIF did not respond to claimant's September 24, 1982, request for reopening or to subsequent requests. On December 30, claimant requested a hearing. On March 1, 1983, SAIF paid her interim time loss from September 29, 1982, to March 2, 1983. On March 11, 1983, SAIF acknowledged her request to reopen the claim but stated that additional time was needed to investigate it. SAIF denied the claim on May 12, 1983, on the ground that there had been no worsening since claim closure. Interim time loss payments were timely after the March 1 payment until the denial on May 12.
SAIF now concedes that there has been a worsening of claimant's condition. However, it disagrees with claimant as to when the worsening occurred and, consequently, as to the date as of which she has proved an aggravation. Claimant argues that a changed diagnosis alone is sufficient to constitute a worsening and that a worsening is proven as of March, 1981, when Fleming's tests indicated the presence of the organic brain injury later diagnosed by Howieson.
ORS 656.273(1) provides:
"After the last award or arrangement of compensation, an injured worker is entitled to additional compensation, including medical services, for worsened conditions resulting from the original injury." (Emphasis supplied.)
To establish an aggravation, there must be a worsening of the claimant's condition and a causal relation between that worsening and the compensable injury. Hoke v. Libby, McNeil & Libby, 73 Or.App. 44, 46, 697 P.2d 993 (1985). If the underlying condition has not worsened, "it is sufficient to show that the symptomatology of the condition has worsened so that the claimant is more disabled than at the time of the last arrangement of compensation." Consolidated Freightways v. Foushee, 78 Or.App. 509, 512, 717 P.2d 633 (1986). Claimant's organic brain injury is no worse than it was at the time of claim closure. Howieson characterized it as nonprogressive and "essentially unchanged since the time of the accident."
That Howieson's report states that claimant is now totally disabled, taken alone, does not prove an aggravation. That she was originally granted only 35 percent unscheduled permanent partial disability and that Howieson now believes that she is totally disabled does not establish that her condition has "worsened." It may simply be that the prior award was inadequate. The evidence is that claimant's organic brain damage is the same now as at the time of the accident. It was simply not diagnosed until September, 1982. An aggravation claim is not a means by which to correct an inadequate permanent disability award that was made on the basis of a flawed diagnosis. If it were, ORS 656.273 would be a means for a delayed review of erroneous findings or awards in an initial determination. Bowser v. Evans Products Co., 17 Or.App. 542, 545, 522 P.2d 1405, rev'd on other grounds, 270 Or. 841, 530 P.2d 44 (1974). 1 As we said in Deaton v. SAIF, 33 Or.App. 261, 263, 576 P.2d 35 (1978):
...
To continue reading
Request your trial-
Short v. State Acc. Ins. Fund Corp.
...of the referee's order concerning the penalty issue, and (3) upheld the board's award of attorney fees. Short v. SAIF, 79 Or.App. 423, 719 P.2d 894 (1986) (Short I ). The claimant then petitioned the circuit court for an increase in the board's attorney fee award. The circuit court raised t......
-
Short v. State Acc. Ins. Fund Corp.
...in this area; it may be expected to make consistent and knowledgeable assessments of the attorney effort involved." Short v. SAIF, 79 Or.App. 423, 429, 719 P.2d 894 (1986). Shortly after that decision, claimant petitioned the circuit court for an increase in the fees award, pursuant to ORS ......
-
Weyerhaeuser Co. v. Fillmore
...that the Board might "be expected to make consistent and knowledgeable assessments of the attorney effort involved." Short v. SAIF, 79 Or.App. 423, 429, 719 P.2d 894 (1986). This is the first time that we have considered that standard of review since the 1987 Legislative Assembly directed u......