SAIF Corp. v. Walker

930 P.2d 230, 145 Or. App. 294, 1996 Ore. App. LEXIS 1904
CourtCourt of Appeals of Oregon
DecidedDecember 24, 1996
DocketWCB 93-07081; CA A89100
StatusPublished
Cited by9 cases

This text of 930 P.2d 230 (SAIF Corp. v. Walker) 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. Walker, 930 P.2d 230, 145 Or. App. 294, 1996 Ore. App. LEXIS 1904 (Or. Ct. App. 1996).

Opinions

[296]*296DEITS, J.

Employer seeks review of an order of the Workers’ Compensation Board allowing claimant’s aggravation claim. We reverse and remand for reconsideration.

Claimant was injured in 1991 while working as a timber feller for employer. At that time, he injured his low back and left hip and leg. Dr. Buza diagnosed an L5-S1 disc herniation. The claim for this injury was accepted by employer. Claimant’s condition was declared medically stationary on May 26, 1992. The closing report by Buza, the treating physician, describes the injury as moderate, but states that loss of function was minimal. It is also stated in the report that claimant continued to experience some low back pain and occasional pain in his left leg. Claimant was released to regular work on June 1,1992. His work required lifting up to 100 pounds. A notice of closure was issued, and claimant was awarded 12 percent unscheduled permanent disability. Claimant requested reconsideration of the notice of closure. A medical arbiter’s examination was conducted by Dr. Burr on February 1, 1993. He found that claimant had a chronic and permanent medical condition arising from the accepted condition.

On February 3, 1993, claimant experienced severe back and left leg pain while on the job. Claimant left work and again sought treatment with Buza, who noted that claimant’s symptoms had significantly increased since his medically stationary date. Buza diagnosed “musculoligamen-tous strain, sclerotomal pain.” The diagnosis was supported by reduced range of motion findings. In response to claimant’s request for reconsideration, an order was issued on February 12, 1993, which increased claimant’s award of unscheduled disability to 16 percent and affirmed the medically stationary date of May 26,1992.

Claimant saw Buza again on March 9,16 and 29. At Buza’s request, claimant underwent a physical capacities examination. He was assessed as capable of light to medium work with lifting and carrying up to 35 pounds. Claimant then filed an aggravation claim, which employer denied. Claimant requested a hearing on employer’s denial of the [297]*297aggravation claim. The administrative law judge (AU) set aside the denial, concluding:

“Claimant is entitled to additional compensation for worsened conditions resulting from the original injury. To establish a compensable worsening of his unscheduled condition, claimant must show that increased symptoms or worsening of the underlying condition resulted in diminished earning capacity. Further, the medical worsening must be established by medical evidence supported by objective findings. Finally, because claimant received a disability award prior to his worsening, he bears the additional burden of establishing that the worsening is more than waxing and waning of symptoms of a condition contemplated by the previous permanent disability award. ORS 656.273.
* * * *
“The medical and lay evidence establishes that claimant has increased symptoms that exceed the symptoms he experienced at the time of claim closure. At the time of closure claimant’s symptoms were episodic. In February 1993 these symptoms dramatically changed. Dr. Buza described the increased symptoms as severe and disabling. Comparison of the May 26, 1992 closing report with the Dr. Buza’s February 1993 report * * * indicates that the increased symptoms reflect more than a mere waxing and waning of symptoms. * * * Therefore, I find claimant has carried his burden of proof and established a compensable aggravation claim pursuant to ORS 656.273.” (Emphasis supplied.)

The Board adopted the ALJ’s order.

Employer first argues on review that a remand of the Board’s decision is required by the 1995 amendments to the Workers’ Compensation Law. Or Laws 1995, ch 332, § 31. Specifically, employer contends that under the amended version of ORS 656.273, in order to prove an aggravation claim, a worker must show an “actual worsening” of the accepted condition. Employer asserts that, unlike the standard under the previous version of the statute, a worker may no longer prove an aggravation claim by showing a worsening of symptoms alone. Employer argues that because the Board decided this case on the basis of a symptomatic worsening, it must be [298]*298remanded to the Board for reconsideration under the amended version of ORS 656.273.

Claimant argues that it is not necessary to remand this case to the Board. He contends that remand is not necessary to interpret the amended language of the statute, because the Board has already done so in another case. Further, he asserts that a remand is unnecessary because under the Board’s interpretation of the new language, the standard of proof used by the Board was the proper one.

We agree with claimant that the Board previously has considered the meaning of the amended statutory language and that, accordingly, it is not necessary to remand this case to the Board for the purpose of addressing that question in the first instance. See Deluxe Cabinet Works v. Messmer, 140 Or App 548, 915 P2d 1053, rev den 324 Or 305 (1996). Therefore, we will consider whether the standard for proving an aggravation under the amended version of ORS 656.273 that the Board has applied in this case is correct.1

The pertinent language of ORS 656.273(1) now provides:

“After the last award or arrangement of compensation, an injured worker is entitled to additional compensation for worsened conditions resulting from the original injury. A worsened condition resulting from the original injury is established by medical evidence of an actual worsening of the compensable condition supported by objective findings.”2 (Emphasis supplied.)

The emphasized language was added to the statute by the 1995 amendments. Under the words of the statute before it was amended, a worker could prove an aggravation by showing worsened symptoms without showing a worsening of the [299]*299underlying condition. Perry v. SAIF, 307 Or 654, 772 P2d 418, aff'd on remand 99 Or App 52 (1989); Gwynn v. SAIF, 304 Or 345, 353, 745 P2d 775 (1987). The question presented here is what did the legislature intend by its addition of the words “of an actual worsening of the compensable condition” to the statute?

The Board directly addressed this question in Carmen C. Neill, 47 Van Natta 2371 (1995). The Board concluded that the additional language, particularly when considered in the context of related statutes, in particular ORS 656.214(7), is ambiguous.

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SAIF Corp. v. Walker
930 P.2d 230 (Court of Appeals of Oregon, 1996)

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Bluebook (online)
930 P.2d 230, 145 Or. App. 294, 1996 Ore. App. LEXIS 1904, Counsel Stack Legal Research, https://law.counselstack.com/opinion/saif-corp-v-walker-orctapp-1996.