Boeing Aircraft Co. v. Roy

827 P.2d 915, 112 Or. App. 10, 1992 Ore. App. LEXIS 471
CourtCourt of Appeals of Oregon
DecidedMarch 11, 1992
Docket89-07274; CA A66907
StatusPublished
Cited by5 cases

This text of 827 P.2d 915 (Boeing Aircraft Co. v. Roy) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Boeing Aircraft Co. v. Roy, 827 P.2d 915, 112 Or. App. 10, 1992 Ore. App. LEXIS 471 (Or. Ct. App. 1992).

Opinion

JOSEPH, C. J.

Employer seeks review of a Workers’ Compensation Board order holding that pain and numbness in claimant’s shoulder, arm and hand are compensable conditions. It argues that the Board erred in setting aside the denial, because it was a partial denial of compensation involving 2 conditions from which claimant did not suffer. It also assigns error to the Board’s determination that the condition is compensable, because claimant failed to establish a specific medical diagnosis for the cause of his pain and to its finding that the condition was the result of an on the job injury.

Claimant had an accident at work on January 18, 1989, while moving a heavy box of machine parts. Employer described the accident in the injury report:

“As Robert reached down to straighten out parts basket to be parallel to operator’s platform[J his foot slipped off edge of platform, resulting in the twisting injury.”

Claimant suffered some lower back and hip pain immediately and consulted the plant nurse, but he did not miss any work and did not consult a physician. As the back and hip pain gradually improved, he began to have pain in his neck and left shoulder. On February 5,1989, he suffered sudden excruciating pain in his neck, left shoulder and arm, when he bent over to pick up a piece of paper in his bathroom at home. He went to see his family physician, Dr. Johansen.

On the first First Medical Report form, Johansen wrote as his diagnosis: “Strain left shoulde[r] (tendonitis).” A few days later, claimant went to a hospital emergency room for treatment of “right shoulder and arm pain with hand numbness.” The hospital record shows that the emergency room physician diagnosed the problem as neuralgia and referred claimant to Dr. Cleary, an allergist, who concluded that the condition was “not in his field” and immediately referred claimant to a neurologist. Cleary nevertheless filled in the diagnosis section of the second First Medical Report form: “R[ule]/0[ut] L[eft] ulnar nerve injury L[eft] brachial plexus injury.” Under remarks he added, “To see Dr. Robert Rosenbaum M.D.” The Board found that Cleary did not intend those comments to be a diagnosis, but

“reported to the carrier that he was referring claimant to Dr. Rosenbaum [a neurologist] in order to rule out a left ulnar [13]*13nerve injury and a left brachial plexus injury.” (Emphasis supplied.)

There is substantial evidence to support that.

In a letter dated February 21, 1989, Rosenbaum concluded, after his examination of claimant:

“[T]he patient now has discomfort in the left shoulder into the left upper extremity. His symptoms and his weakness are primarily in an ulnar nerve distribution, however, in addition he has pain in his shoulder and a decreased left triceps reflex. Rather than an ulnar nerve lesion, I think that this represents a C8 nerve root lesion. Because the patient does have significant left hand weakness I have scheduled him for a MRI scan of the cervical spine.”

The MRI report indicated that claimant had “narrowing of the left C7-T1 neuroforamen for the C8 root due to osteophyte formation arising from the body of Tl.” Johansen’s progress report, dated March 21,1989, interpreted the medical reports:

“ACUTE PROBLEM: C: TENDONITIS LEFT SHOULDER. * * * [Claimant] had nerve conduction studies which showed some changes in his left arm and also a CT scan which showed some changes in his neck. That might cause nerve pressure. * * * Dr. Cleary and Dr. Rosenbaum felt that this was an industrial injury that was caused by an incident where he slipped while moving baskets of old parts on 1/18/89.”

On February 15, 1989, claimant filed a claim for compensation for left arm and shoulder pain that caused time loss. On March 1, employer denied the claim:

“We have concluded our investigation into the above captioned claim. Please be advised that we are denying your claim since our investigation indicates that the condition from which you suffer did not arise out of and in the scope of your employment.
“That your left ulnar nerve and brachial plexus injuries are not causily [sic] related to the accident on January 18,1989.”

Employer argues that that letter only denied compensation for the 2 injury diagnoses specified in the second paragraph and was not a denial of the entire claim. It contends that claimant failed to prove that he suffered either of those injuries.

[14]*14The Board’s finding that the insurer intended the letter to be a complete denial is supported by substantial evidence in the record. The first paragraph clearly says that employer’s investigation had been completed and implies that employer did not intend to consider the claim any further. The second paragraph suggests that employer had treated Cleary’s note as a diagnosis. Even though the letter does not specifically mention tendonitis or neuralgia, it does not suggest that the decision was incomplete or that any element of the claim was still being considered. Moreover, claimant never received any other acceptance or denial.

In its second assignment of error, employer argues that the Board should have required claimant to prove a specific medical diagnosis to support the claim that his pain symptoms reflected a compensable injury. It relies on Weyerhaeuser Co. v. Warrilow, 96 Or App 34, 771 P2d 295, rev den 308 Or 184 (1989), in which we reversed the Board and reinstated the employer’s partial denial of a claim for neck, shoulder, mid-back and left ankle pain. We held that, although the employer’s letter was vague as to what conditions it had accepted, it was specific as to what it had denied and was, therefore, permissible as a partial denial.

That case does not stand for the proposition that employer advances here. The Board did not set aside a denial of responsibility for left ulnar nerve or brachial plexus injury; those denials were irrelevant, because claimant did not have those injuries and did not make a claim for them. The Board set aside a general denial of the claim.

Employer complains that it would be “completely unfair” if we affirm the Board, because it will be financially responsible if claimant’s pain returns, “even if it is later conclusively determined that the pain is due to an otherwise noncompensable degenerative condition (like cervical osteophyte formations).”1 It urges that claims that lack specificity “impale the employer on the horns of a dilemma,” unfairly forcing it to risk failing to accept or deny the claim timely on the one hand or exposing itself to liability for a noncompensable condition on the other. ORS 656.262(10); Georgia-[15]*15Pacific v. Piwowar, 305 Or 494, 753 P2d 948 (1988). Even if employer has correctly identified the legal effect of those hypothetical facts as a dilemma,2 it has not raised an issue that we can address.3

Finally, employer argues that the record does not contain substantial evidence to support the Board’s finding that claimant’s pain and numbness were caused by his work. It returns to the theory that claimant had to prove a particular diagnosis

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Bluebook (online)
827 P.2d 915, 112 Or. App. 10, 1992 Ore. App. LEXIS 471, Counsel Stack Legal Research, https://law.counselstack.com/opinion/boeing-aircraft-co-v-roy-orctapp-1992.