Cox v. SAIF Corp.

855 P.2d 1165, 121 Or. App. 568, 1993 Ore. App. LEXIS 1177
CourtCourt of Appeals of Oregon
DecidedJuly 14, 1993
Docket91-09172; CA A77360
StatusPublished

This text of 855 P.2d 1165 (Cox v. SAIF Corp.) 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
Cox v. SAIF Corp., 855 P.2d 1165, 121 Or. App. 568, 1993 Ore. App. LEXIS 1177 (Or. Ct. App. 1993).

Opinion

ROSSMAN, P. J.

Claimant seeks review of an order of the Workers’ Compensation Board affirming without opinion the referee’s order that claimant’s hypertension, diabetes and hyper-lipidemia are not compensable. We agree with claimant that the Board erred in determining that the conditions are not compensable, and we reverse and remand for reconsideration.

In an unappealed order of March 29, 1989, a referee held that claimant’s hypertension, diabetes and hyper-lipidemia are compensable, because they are materially related to a compensable hand injury. The medical evidence showed that the three conditions were consequences of the compensable injury.

In 1990, the legislature enacted ORS 656.005(7) (a)(A), which provides, in part:

“No injury or disease is compensable as a consequence of a compensable injury unless the compensable injury is the major contributing cause of the consequential condition.”

In Albany General Hospital v. Gasperino, 113 Or App 411, 415, 833 P2d 1292 (1992), we held that, under ORS 656.005 (7)(a)(A), if a condition or need for treatment is caused by the industrial injury, as opposed to the industrial accident, the major contributing cause standard is applicable.

In 1991, claimant’s treating doctor provided an opinion that the major contributing cause of claimant’s hypertension and diabetes is an inherited tendency, and that the major contributing cause of claimant’s hyperlipidemia is his diabetes and inherited tendencies. SAIF sent claimant a letter denying the compensability of the three conditions, on the ground that work was not the major contributing cause of the conditions.1 The referee and the Board affirmed the denial, [571]*571reasoning that changes in the law permitted relitigation of the compensability of the three consequential conditions. The Board held that claimant had failed to satisfy his burden under ORS 656.005(7)(a)(A) to show that the compensable injury was the major contributing cause of the three conditions.

Claimant seeks review, contending that SAIF may not relitigate the compensability of the three conditions under the new, stricter standard. We agree. The three conditions were finally and conclusively determined to be compen-sable in 1989. The Board erred in holding that the compensability of the conditions may be relitigated subsequent to a change in the law creating a new standard for compensability. North Clackamas School Dist. v. White, 305 Or 48, 750 P2d 485, mod 305 Or 468, 752 P2d 1210 (1988).

Although SAIF seeks to affirm the Board’s order, it does not contend on review that the compensability of the conditions themselves are subject to relitigation. Rather, it argues that the compensability of treatment for the conditions rendered after July 1, 1990, is subject to relitigation under the standard set forth in ORS 656.005(7)(a)(A). The practical effect is nearly the same.

Thorpe v. Seige Logging, 115 Or App 335, 838 P2d 628 (1992), rev den 315 Or 313 (1993), on which SAIF relies, is distinguishable. There, the claimant’s treatments with Dimethylsulfoxide (DMSO) had been determined to be com-pensable in 1983. Subsequently, in 1989, the Department of Insurance and Finance (DIF) amended its administrative rules in response to a statutory change, to provide that DMSO treatment was considered to be reasonable and necessary only for a condition that the claimant did not have. SAIF denied payment for the claimant’s DMSO treatments rendered after the effective date of the rule. The claimant contended that relitigation of the compensability of DMSO treatment was barred, or in the alternative, that pursuant to ORS 656.202, his claim should be governed by the law in effect at the time of injury, and the statutory and rule amendments were inapplicable. We held that litigation of the compensability of a specific type of treatment after the amendment to the statute and administrative rule was not barred by the 1983 determination of the compensability of [572]*572the treatment. Additionally, we held that the statutory and related rule amendments were applicable to the claim. They did not affect the underlying compensability of the claim. Specifically, we relied on Oregon Laws 1987, chapter 884, section 62(1):

“Notwithstanding ORS 656.202, amendments by this act to ORS 656.245, 656.254, 656.262, 656.278, 656.298, 656.388, 656.538, 656.622, 656.794 and sections 17, 18, 28, 29, 30, 31, 33 and 41 of the Act become operative January 1, 1988.”

We said:

“By including the language ‘notwithstanding ORS 656.202,’ the legislature specifically indicated that it intended that ORS 656.245(4) —and, consequently, rules promulgated under its authority — would apply to all claims in existence on the operative date of the rules, without regard to the law that was applicable at the time of injury.
“We recognize the harsh consequences of so applying the legislation, but we are required to interpret statutes as the legislature writes them. Section 62(a) must be read to describe both the operative date of the specified amendments and the applicability of those amendments to particular claims.” 115 Or App at 340. (Emphasis in original.)

Here, a provision analogous to Section 62(1) is applicable to the legislative amendments creating ORS 656.005(7)(a)(A). Oregon Laws 1990, chapter 2, section 54(1) provides

“Except for amendments to ORS 656.207, 656.211, 656.214(2) and 656.790, this 1990 Act becomes operative July 1, 1990, and notwithstanding ORS 656.202, this 1990 Act applies to all claims existing or arising on and after July 1, 1990, regardless of date of injury, except as specifically provided in this section.”

SAIF contends that that section makes ORS 656.005(7)(a)(A) applicable to this claim for the purpose of determining the compensability of medical treatment for the three compen-sable conditions. We conclude, however, that the provisions of section 54(1) do not express an intention to permit the relitigation of claims that have previously been fully and finally litigated under the former statutes.

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Related

North Clackamas School Dist. v. White
750 P.2d 485 (Oregon Supreme Court, 1988)
Tektronix, Inc. v. Nazari
853 P.2d 315 (Court of Appeals of Oregon, 1993)
Tektronix, Inc. v. Nazari
844 P.2d 258 (Court of Appeals of Oregon, 1992)
North Clackamas School Dist. v. White
752 P.2d 1210 (Oregon Supreme Court, 1988)
Albany General Hospital v. Gasperino
833 P.2d 1292 (Court of Appeals of Oregon, 1992)
Thorpe v. Seige Logging
838 P.2d 628 (Court of Appeals of Oregon, 1992)

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Bluebook (online)
855 P.2d 1165, 121 Or. App. 568, 1993 Ore. App. LEXIS 1177, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cox-v-saif-corp-orctapp-1993.