Hiner v. Crawford Health & Rehabilitation

961 P.2d 283, 154 Or. App. 380, 1998 Ore. App. LEXIS 934
CourtCourt of Appeals of Oregon
DecidedJune 10, 1998
Docket95-11008; CA A96402
StatusPublished
Cited by1 cases

This text of 961 P.2d 283 (Hiner v. Crawford Health & Rehabilitation) 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
Hiner v. Crawford Health & Rehabilitation, 961 P.2d 283, 154 Or. App. 380, 1998 Ore. App. LEXIS 934 (Or. Ct. App. 1998).

Opinion

ARMSTRONG, J.

Claimant seeks review of an order of the Workers’ Compensation Board affirming employer’s denial of her aggravation claim. We review for substantial evidence and errors of law, see ORS 183.482(8), and affirm.

Claimant was involved in a work-related car accident on September 19, 1990. She filed a workers’ compensation claim for the accident, which was accepted by employer as a nondisabling injury claim. Claimant received medical services for her injuries during the next year.

In October 1991, claimant also began seeking psychological treatment and, in early 1992, she began seeking medical treatment for chronic neck and back strain, fibromyalgia and thoracic outlet syndrome. On March 9, 1992, and June 25, 1992, employer sent claimant “partial denials” that denied the compensability, “in connection with her September 19, 1990 injury claim,” of her “thoracic outlet syndrome, her current neck and back condition, including fibromyalgia and her psychological condition.”

Claimant requested a hearing on the denial. At the hearing, claimant agreed that her claim was for nondisabling injuries,1 but objected to employer’s conclusion that the conditions it had denied were unrelated to her 1990 injury. On [383]*383March 31,1993, the ALJ issued an order concluding that the conditions were compensably related to the 1990 claim:

“IT IS THEREFORE ORDERED that [employer’s] March 9, 1992 and June 25, 1992 partial denials, as clarified at the March 31, 1993 hearing, are set aside. Claimant’s September 19, 1990 injury claim with [employer] is hereby remanded to [employer] for acceptance, in connection with said claim, of the compensability of her cervical/ lumbar strain conditions, fibromyalgia, and thoracic outlet syndrome, for which she has received medical services since early 1992, and for acceptance, in connection with her 1990 injury claim, of the psychological conditions for which claimant has received medical services since October 1991.”

Employer sought review of that decision and the Board affirmed the order of the ALJ. Effective March 17,1995, this court affirmed, without opinion, the order of the Board. After entry of the appellate judgment, employer began paying, and continued to pay, for the medical services related to the conditions at issue in those proceedings.

Claimant had continued to work and to require medical services throughout the appeal of the partial denials. In May 1995, one of her physicians, Dr. Morris, noted that claimant’s conditions seemed to be stabilizing. She continued to be treated by Morris throughout the summer, and on September 11, 1995, he reported that claimant was more comfortable but continued to need treatment. On September 14, 1995, claimant saw another physician, Dr. Carter. At that time, claimant “reported worsening pain in her neck, right shoulder, right arm and low back” and Carter believed that claimant’s depression was worse than it had been when he had seen her in September 1993. In late September 1995, claimant’s symptoms increased and on October 5, 1995, claimant quit working because of her various chronic conditions. She continued to receive medical services from Morris and Carter.

On December 8, 1995, Morris signed a notice of an aggravation claim. Claimant signed the form on December 21, 1995, and employer received it on or before January 2, 1996. On January 10, 1996, employer sent claimant a letter [384]*384denying her aggravation claim. Claimant requested a hearing.

An AL J upheld the denial of claimant’s aggravation claim after a hearing. On Board review of that decision, claimant made several arguments. First, she challenged the initial processing of her claim in 1990. Citing ORS 656.319(6), the Board rejected that argument as time barred. She also argued that employer had failed to process her claim properly after the entry of the appellate judgment. The Board rejected that argument, too.

Next, claimant asserted that her claim had become disabling and needed to be reclassified as such. Claimant argued that she did not have to establish an aggravation in order to have her claim reclassified and presented evidence that her claim had been disabling since as early as 1992. She argued that, even if she did have to prove an aggravation, she had established one in the 1993 hearing. The Board concluded that claimant had to prove an aggravation in order to have her claim reclassified. Under ORS 656.277(2) and ORS 656.273(4)(b), it concluded that claimant had to file that aggravation claim within five years of her accident, which meant that the claim had to have been filed by September 19, 1995. The Board found that claimant had not made an aggravation claim at or before the 1993 hearing, nor had she filed any other aggravation claim before her aggravation rights expired. Finally, the Board rejected claimant’s argument that it should impose a penalty against employer.

Claimant sought judicial review. On review, she assigns error to the Board’s conclusion that she can neither file an aggravation nor get her 1990 nondisabling claim reclassified after September 19,1995. We review the Board’s conclusion for errors of law. See ORS 183.484(8)(a).

ORS 656.277 dictates the procedures that a claimant must follow in order to have a claim reclassified as disabling. ORS 656.277(1) provides:

“If within one year after the injury, the worker claims a nondisabling injury originally was or has become disabling, the insurer or self-insured employer, upon receiving notice or knowledge of such a claim shall report the claim to the [385]*385Director of the Department of Consumer and Business Services for determination pursuant to ORS 656.268.”

(Emphasis supplied.) ORS 656.277(2) provides:

“A claim that a nondisabling injury originally was or has become disabling, if made more than one year after the date of injury, shall be made pursuant to ORS 656.273 as a claim for aggravation.”

(Emphasis supplied.) In 1990, claimant’s claim for her September 19, 1990, injury was accepted as a nondisabling claim. Although it appears that employer did not process the claim correctly in 1990, at the March 1993 hearing claimant acknowledged that her claim had been classified as nondisabling. She did not object to that classification, nor did she object to employer’s processing of her claim.

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Related

Hiner v. Crawford Health & Rehabilitation
54 P.3d 633 (Court of Appeals of Oregon, 2002)

Cite This Page — Counsel Stack

Bluebook (online)
961 P.2d 283, 154 Or. App. 380, 1998 Ore. App. LEXIS 934, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hiner-v-crawford-health-rehabilitation-orctapp-1998.