SAIF Corp. v. Falconer

963 P.2d 50, 154 Or. App. 511, 1998 Ore. App. LEXIS 1067
CourtCourt of Appeals of Oregon
DecidedJune 24, 1998
Docket95-06207; CA A94278
StatusPublished
Cited by4 cases

This text of 963 P.2d 50 (SAIF Corp. v. Falconer) 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
SAIF Corp. v. Falconer, 963 P.2d 50, 154 Or. App. 511, 1998 Ore. App. LEXIS 1067 (Or. Ct. App. 1998).

Opinions

DEITS, C. J.

Employer petitions for review of an order of the Workers’ Compensation Board (Board) in which the Board held that claimant had proved that a neck condition, “torticollis,” was compensable under ORS 656.802, the “mental disorder” provisions of the occupational disease law. We affirm.

Claimant worked as a certified nursing assistant at employer’s residential care facility in eight-hour shifts. Her schedule was three days on and three days off. She normally cared for eight to ten residents per shift. On March 19,1995, one of the nurses scheduled to work was absent, but a new employee was there. Claimant was assigned to train the new employee, and the two were assigned a double section consisting of 14 residents. Because the new employee had to be shown the proper procedures, she had to remain with claimant and could not care for any of the residents on her own. Thus, claimant had to complete all necessary duties for 14 residents in the same time that it would normally take to care for eight to ten residents, while completing the new employee’s checklist of things to learn. By the end of the day, claimant felt exhausted, tense, irritable and achy. The following day she complained to her supervisor, saying she felt that she and the new employee had been treated unfairly and expressing concern that the new employee might be “scared off.”

Claimant had the next three days off and took the time to rest. On the morning of the third day when claimant woke up and rolled over in bed, she felt a sharp stabbing pain in her neck and shoulder. She sought treatment in the emergency room, where she was diagnosed with acute right neck strain and spasm. Claimant was unable to return to work the following day and did not work her scheduled three days or the next three days, which were her scheduled days off. She returned to work and resumed her normal duties after having been off a total of nine days. During this time period, she began treatment with a chiropractor, which lasted about two months, and she filed a workers’ compensation claim.

[514]*514On August 4,1995, Dr. Arbeene, an orthopedic specialist, conducted an independent medical examination of claimant at employer’s request. Claimant reported to him that she had had another incident of neck pain in July when more new employees joined the staff and she had an increased workload. She was treated by her family physician and missed approximately three weeks of work. Arbeene diagnosed “torticollis,” a cramping and spasmodic contracture of the neck muscles, which he associated with mental stress and tension from claimant’s work environment. In a post-hearing deposition, Arbeene acknowledged that his diagnosis was not a diagnosis of a mental condition or mental disorder, stating that he was not a psychiatrist and had not done any kind of psychiatric examination. He also stated that claimant had other stress factors in her life besides work, but that he had not undertaken any weighing of the relative importance of those stress factors versus the work stress factors in the cause of her condition.

Employer denied claimant’s claim for compensability of the torticollis condition. Claimant requested a hearing on the denial. After hearing, the administrative law judge (ALJ) set aside employer’s denial. With one member dissenting, the Board affirmed the ALJ’s order.

The critical statute is ORS 656.802, which provides, in relevant part:

“(l)(a) As used in this chapter, ‘occupational disease’ means any disease or infection arising out of and in the course of employment * * *, including:
“* * * * *
“(B) Any mental disorder, whether sudden or gradual in onset, which requires medical services or results in physical or mental disability or death.
^
“(b) As used in this chapter, ‘mental disorder’ includes any physical disorder caused or worsened by mental stress.
«* * * * *
[515]*515“(3) Notwithstanding any other provision of this chapter, a mental disorder is not compensable under this chapter unless the worker establishes all of the following:
“(a) The employment conditions producing the mental disorder exist in a real and objective sense.
“(b) The employment conditions producing the mental disorder are conditions other than conditions generally inherent in every working situation or reasonable disciplinary, corrective or job performance evaluation actions by the employer, or cessation of employment or employment decisions attendant upon ordinary business or financial cycles.
“(c) There is a diagnosis of a mental or emotional disorder which is generally recognized in the medical or psychological community.
“(d) There is clear and convincing evidence that the mental disorder arose out of and in the course of employment.” (Emphasis supplied.)

The issue here is what a claimant with a physical disorder must prove to satisfy the requirements in ORS 656.802(3)(c) that there must be “a diagnosis of a mental or emotional disorder which is generally recognized in the medical or psychological community.” The Board concluded that the plain language of the statute provides the answer to the statute’s meaning. It explained:

“It is a fundamental rule of statutory construction that when a word or phrase is used repeatedly in the same statute it is presumed to have the same meaning throughout absent clear indication of a contrary intent. Pense v. McCall, 243 Or 383, 389[, 413 P2d 722] (1966); Cherry Growers v. Emp. Div., 25 Or App 645, 649, [550 P2d 1250,] rev den (1976). See also PGE v. Bureau of Labor and Industries, 317 Or 606, 611[, 859 P2d 1143] (1993) (use of the same term throughout a statute indicates that the term has the same meaning throughout the statute). With regard to amended ORS 656.802, we find no clear indication in the plain language of the statute that the words ‘mental disorder’ should carry a different meaning in paragraph (3)(c) than they do in paragraph (l)(b). On the contrary, amended ORS 656.802(l)(b) provides [a]s used in this chapter, [516]*516“ ‘mental disorder’ ” includes * * *’ (emphasis added), indicating that the statutory definition of‘mental disorder’ that follows means the same throughout all of Chapter 656.
“Relying on the plain language of the statute, we construe paragraph (3)(c) of ORS 656.802 in light of, rather than independent of, the definition of ‘mental disorder’ in paragraph (l)(b).

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Cite This Page — Counsel Stack

Bluebook (online)
963 P.2d 50, 154 Or. App. 511, 1998 Ore. App. LEXIS 1067, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saif-corp-v-falconer-orctapp-1998.