Neely v. State Accident Insurance Fund

602 P.2d 1101, 43 Or. App. 319, 1979 Ore. App. LEXIS 3384

• Court: Court of Appeals of Oregon
• Decided: November 26, 1979
• Docket: 77-7056, CA 14202
• Status: Published

Opinion

RICHARDSON, J.

In this workers compensation case, claimant seeks eversal of an order by the Workers’ Compensation Board which denied his claim on the ground that laimant’s present condition was not the result of his vork related injury.

On January 2, 1968, when he was 21 years old, laimant suffered a back injury while working as a agger. He received no permanent disability award and e did not appeal that Determination Order. In 1970 te had a back strain with considerable functional verlay and in 1971 he reinjured his back in a surfing ccident.

In January of 1976, while working as a truck driv-r, claimant suffered a hernia injury and underwent urgical repair. He was awarded temporary total dis-bility through February 25, 1976. Claimant returned ) work and on March 30,1976, suffered an abdominal ljury while putting a tarp on the trailer of his truck, he disability arising from this abdominal injury is íe subject of this appeal. Claimant returned to work riefly in June of 1976, but has not worked since.

By a Determination Order of November 1977, aimant was awarded temporary total disability bene-ts through September 30,1977, 1 and permanent paral disability for 35 percent unscheduled disability •esulting from injury to [his] low back.” In December ' 1977, a further Determination Order was issued •anting temporary total disibility through December 1977, and affirming the award of 35 percent perma-jnt partial disability. Again the award was grounded i the claimant’s back condition. Claimant requested hearing alleging the award was insufficient and the feree affirmed the December Determination Order, e noted, however, that the award was for a low back Hjury coupled with functional overlay, but that claim ant’s injury for which he sought compensation was to his abdomen. There was a curious lack of evidence relating the claimant’s condition resulting from his abdominal injury. There was no indication from the medical reports that claimant injured his back in the March, 1976, accident. The referee stated: "Accordingly, it is confusing as to why an award has been made for unscheduled back disability, as a result of the March, 1976, incident.” He further stated:

"As indicated earlier, it would be impossible to totally summarize all of the medical reports and opinions. In reading them through carefully, however, numerous times, one is struck by the overwhelming impression, by all of the examiners, both medical and psychological, that this young man has voluntarily elected to retire, and will not rest until he is declared to be permanently and totally disabled.

"If the claimant has a back condition, and apparently it is a mild condition if it exists at all, it results from the January 2, 1968 accident, and at best, was only temporarily exacerbated by the incident on March 30, 1976 when claimant reported upper right abdomen pain, from lifting tarps (Ex. 1). I feel the Determination Order erred in making an award for low back disablity, in December 1977 (Ex. 37). There is no medical basis to make a finding of low back disability, as a result of this accepted accident.

"In any event, there is certainly no evidence to indicate that claimant is permanently and totally disabled as a result of this accident. His present complaints, be they physical and/or psychological, dated back to at least 1970, six years prior to this incident (Ex. 45).”

However, he affirmed the Determination Order.

Claimant requested review before the Board. In his brief he stated: "The issue is the extent of the claimant’s disability. This is an accepted low back injury claim.” SAIF, in its brief to the Board, stated: "The referee’s Opinion and Order in this case should be affirmed and the Fund, although it did not appeal the Determination Order in this case, cannot comprehend s did the referee as to why any permanent disability ward was made in this case.” The Board reversed the •etermination Order, by finding that there was no ñdence relating the March 1976 abdominal injury to aimant’s back problems and accompanying function-overlay.

Claimant appeals alleging that in denying the ac-¡pted claim the Board denied him a fair hearing scause he prepared only on the issue of the size of the vard. He claims that if the Board makes a finding on msation he is entitled to present evidence on that sue.

Although the Workers’ Compensation Act estab-3hes a means for a party to petition the Board for oss-review, ORS 656.289(3), we have held that a irty need not cross-petition and that the reviewing )dy may reach the issue on its de novo review. Francoeur v. SAIF, 20 Or App 604, 607, 532 P2d 1148 (1975). The Board’s review is de novo. Robertson v. SAIF, 17 Or App 280, 281, 521 P2d 1088 (1974). The sard may reverse or modify the order of the referee make such disposition of the case as it determines to ; appropriate. ORS 656.295(6).

Fundamental fairness may dictate that the Board ould not decide a claim on the basis of evidence not the record, McManus v. State Acc. Ins. Fund, 3 Or App 373, 375, 474 P2d 31 (1970), or on issues to which > evidence was presented. Such would be the case, for ample, where the claimant sought review of an legedly inadequate award, but the Board reversed iding that the claim was not compensable under the it because it did not arise out of claimant’s employ-mt. ORS 656.005(8). If claimant had been given no portunity to present evidence on that issue in the aring below, the proper procedure would be for the Lard to remand the case to the referee, ORS 16.295(5), for the taking of evidence on that issue.

I That is not the case here. There was no need to Rnand the claim to the referee because all the evi dence was in the record. Claimant has submitted his medical report and it is from these reports that the Board concludes that his present condition is not related to his abdominal injury. What claimant has lost sight of is that his own medical evidence fails to relate his present condition to the abdominal injury. It is the abdominal injury which was the subject of his injury report. Any right he had to claim aggravation of his 1968 back injury had long since expired. He cannot bootstrap compensation for his back injury with his abdominal injury in the absence of proof of a relationship. Claimant was not denied fundamental fairness because his medical reports would have said the same thing regardless of whether they were introduced to challenge the sufficiency of an award or rebut the denial of benefits grounded on the lack of a relationship between the compensable injury and his present condition.

The Board’s de novo review is on the basis of the record submitted to it. ORS 656.295(5). We arrive at the same conclusion as did the Board.

Affirmed.

1 The mere payment of compensation is not to be considered an accept-e of the claim. ORS 656.262(7).