Nelson v. State Accident Insurance Fund

634 P.2d 245, 49 Or. App. 111, 1980 Ore. App. LEXIS 3679
CourtCourt of Appeals of Oregon
DecidedNovember 10, 1980
DocketNo. 79-1366, CA 17564
StatusPublished
Cited by3 cases

This text of 634 P.2d 245 (Nelson v. State Accident Insurance Fund) 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
Nelson v. State Accident Insurance Fund, 634 P.2d 245, 49 Or. App. 111, 1980 Ore. App. LEXIS 3679 (Or. Ct. App. 1980).

Opinion

GILLETTE, P. J.

Claimant appeals the denial of her Workers’ Compensation claim for aggravation of a work-related neck injury. She also seeks penalties and attorney fees for unreasonable denial of her claim. We reverse the ruling of the Workers’ Compensation Board (Board) and reinstate the referee’s order finding her injury to be compensable.

At the time of her injury, the claimant was working as a psychiatric aide at Fairview Hospital. On April 3, 1978, claimant injured her neck while taking part in a self-defense class at work. The course was designed to help her deal with violent patients. The injury was diagnosed as a cervical sprain and it was recommended that she receive physical therapy. The examining doctor noted that the claimant had been seeing a chiropractor, Dr. Bolin, for some time for treatment of headaches.

Dr. Bolin indicated that he had been treating the claimant since January, 1977. Claimant was receiving treatment, including neck adjustments, for low back problems and headaches. According to the claimant, these headaches dated from the time she was a young child, and her back problems stemmed from a fall down a flight of stairs in 1969. When Dr. Bolin examined claimant after the April 3 incident, he found her to have minor swelling in her neck at the "first cervical motor unit” and a loss of movement of that motor unit. He noted that claimant had a history of dyskinesia (difficulty or pain on movement) of the first cervical motor unit, and that this new injury exacerbated her condition.

On June 5, 1978, claimant returned to work. In July, Dr. Bolin noted that the claimant was receiving approximately one treatment per month. He expected the treatment to end in August and recommended that the claim be closed. In September, Dr. Bolin indicated that he was treating the claimant upon demand only. He felt that there was no evidence of disability or any permanent impairment from the April 3 injury, and that only occasional treatment would be needed. On October 10, 1978, a determination order was entered awarding the claimant temporary total disability only from April 6 through June 4, 1978.

[114]*114Claimant reported that after her return to work in June she experienced pain in her neck. These pains intensified during the next six months. Finally, claimant felt she could not continue performing her work duties any longer. She quit her job in early January, 1979, and then sought to have her claim reopened for aggravation of her neck injury.

On January 24, 1979, Dr. Bolin wrote to SAIF indicating that the claimant had come to him on January 8 complaining of syiriptoms related to the April 3 injury. He noted severe subocctipital cephalgia (headaches) and loss of upper cervical flexibility with tenderness and swelling in the suboccipital region (the back of the head where it joins the neck). He reported that she was unable to perform her regular job duties. Dr. Bolin indicated that he was scheduling treatments for claimant once a week, with additional treatments if needed. He also scheduled her for an orthopedic evaluation with Dr. Anderson on March 6, 1979.

The claimant failed to keep her appointment with Dr. Anderson. However, she was examined by another orthopedic surgeon, Dr. Poulson. Dr. Poulson diagnosed claimant’s problems as a chronic strain and, "very likely,” a degenerated disc which was slightly bulging and which caused the claimant pain at times in the posterior neck and right upper extremity, depending on her activity. On April 30, Dr. Poulson wrote to SAIF indicating that the claimant wanted her claim reopened. He noted that he had nothing more to offer the claimant on a conservative treatment basis, but felt that the case should be reopened for further diagnostic work in the form of a myelogram to rule out organic pathology. A myelogram was performed and, on June 28, 1979, Dr. Poulson wrote to SAIF indicating that the test was negative, that no further treatment was warranted, and that he felt the claimant’s case could remain closed.

The State Accident Insurance Fund (SAIF), employer’s carrier, paid the claimant temporary total disability for the month of January. On February 1, 1979, however, it denied her claim for aggravation. SAIF did not give any specific reason for the denial, other than that it was based on an examination of the claimant’s file. Claimant appealed SAIF’s denial of her aggravation claim. On [115]*115September 24, 1979, a hearing was held. The referee ordered SAIF to reopen the claim for payment of temporary total disability compensation from January 8, 1978, through June 28, 1979, the date on which Dr. Poulson indicated that the claimant was again stationary, and to resubmit the matter to the Evaluation Division with regard to permanent partial disability. The referee based his decision on the opinions of Dr. Bolin and Dr. Poulson and noted the fact that, despite its denial, SAIF did pay temporary total disability for the month of January and most of the claimant’s medical bills.1 The referee concluded that penalties were not justified in this case.

On appeal, the Board reversed the referee’s order. It found that the medical evidence failed to indicate that the claimant’s condition had worsened since her claim was closed in October, 1978. It took particular note of claimant’s history of back and neck complaints pre-dating her April 3 injury.

ORS 656.273 (1) establishes the statutory standard for claims of aggravation as follows:

"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 added).

On appeal, SAIF contends that the claimant presently suffers from the condition she had prior to her industrial injury, rather than from an aggravation of injury. The claimant maintains that her neck pain and related symptoms are different from the symptoms she experienced prior to her injury at work, and that they have increased in severity since her return to work.

The claimant testified that, prior to April 3, she never experienced any problems with her neck. She admitted that she did have problems with tension headaches and low back pain for some time and was seeing Dr. Bolin for relief of these symptoms. However, she stated that the pain experienced after April 3 was of a different [116]*116kind. She described it as resembling a stiff neck, with a tingling in her arms and headaches originating in her neck, rather than a tension headache centered in her eyes or the top of her head. She indicated that she has swelling at the base of her neck which she never had before. She testified that after returning to work in June the pain gradually became stronger and, as time passed, she found she could do less and less at work. She reported missing a good deal of time from work from June through December. She took a vacation in December, but found it was of little help; she was unable to return to work the next month.

It was Dr. Bolin’s opinion, on deposition, that the claimant’s condition had worsened from the time she returned to work until the time he examined her in January, 1979. He noted that when he released the claimant to return to work in May she had mild symptoms.

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Bluebook (online)
634 P.2d 245, 49 Or. App. 111, 1980 Ore. App. LEXIS 3679, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nelson-v-state-accident-insurance-fund-orctapp-1980.