Scott v. Liberty Northwest Insurance

341 P.3d 220, 268 Or. App. 325, 2013 Ore. App. LEXIS 1566
CourtCourt of Appeals of Oregon
DecidedDecember 31, 2014
Docket1100306; A150234
StatusPublished
Cited by4 cases

This text of 341 P.3d 220 (Scott v. Liberty Northwest Insurance) 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
Scott v. Liberty Northwest Insurance, 341 P.3d 220, 268 Or. App. 325, 2013 Ore. App. LEXIS 1566 (Or. Ct. App. 2014).

Opinion

EGAN, J.

The question in this workers’ compensation case is whether claimant, who was medically stationary on an underlying and compensable low-back claim, was nonetheless entitled to begin receiving temporary disability benefits on an accepted claim for an omitted medical condition. We vacate and remand for reconsideration the Workers’ Compensation Board’s order concluding that claimant was not entitled to them.

The pertinent facts are undisputed. While working for Liberty Northwest’s (Liberty) insured as a certified nursing assistant on January 29, 2007, claimant suffered a work-related injury to her back. In March 2007, Liberty accepted a claim for an “L4-5 disc bulge.” Claimant underwent three surgeries for her work-related injury in 2007. On September 24, 2007, Liberty issued a modified notice of acceptance in which it accepted “Left L4-5 disc protrusion/extrusion.”

On September 18, 2008, claimant’s attending physician, Dr. Craig McNabb, found that claimant was medically stationary. McNabb restricted claimant to modified work and, at the time of the hearing, claimant had not been released for regular work.

Liberty issued a notice of closure in October 2008, awarding claimant time loss through September 18, 2008, as well as permanent disability. The permanent disability award was subsequently reduced on reconsideration by the Appellate Review Unit of the Department of Consumer and Business Services (department), and that award has become final.

On November 20, 2008, claimant made a written request for acceptance of an omitted medical condition described as “arachnoiditis.” Liberty arranged for claimant to be examined by Dr. Chen Tsai in January 2009. Tsai concluded that, based on a January 2008 MRI scan of claimant’s low back, claimant did not have arachnoiditis, but did have scarring at the level of the surgeries. McNabb concurred with Tsai, concluding that claimant’s compensable back condition had caused the scarring, as well as a loss of range of motion, discomfort, and dysfunction. In a report of June 5, [327]*3272009, McNabb noted that claimant had “significant permanent partial disability” due to scarring and nerve damage. On October 7, 2009, McNabb opined that claimant was “ever going to get back to work.”

Liberty denied the arachnoiditis condition, but the parties subsequently reached a stipulation relating to the omitted medical condition claim, which the board approved on October 13, 2009. The stipulation states that the denial of the claim for arachnoiditis is “affirmed,” but that Liberty accepts an omitted condition claim for “surgical scarring.”

In December 2009, McNabb sent a letter to Liberty stating that claimant’s surgical scarring condition had been medically stationary since September 18, 2008. He added that the impairment that he had identified in his September 2008 report would not have encompassed the newly accepted condition of surgical scarring.

Claimant requested a hearing, seeking temporary disability benefits for her omitted condition of surgical scarring. As of the date of the hearing, the omitted condition claim had not yet been closed.

An administrative law judge (ALJ) determined that claimant was entitled to an award of temporary disability benefits on her omitted condition claim from September 18, 2008, through the date of the hearing, as well as the assessment of a penalty under ORS 656.262(11) and attorney fees. The board reversed the ALJ. Reasoning that an award of temporary disability is made for temporary disability, see ORS 656.210 (“When * * * disability is only temporary, the worker shall receive [a percentage of wages.]”), the board concluded that claimant was not entitled to an award of temporary disability benefits for the surgical scarring condition, because the only medical evidence showed that claimant’s disability was permanent, not temporary. For the reasons explained below, we conclude that the board erred in determining that claimant is not entitled to benefits for temporary disability (or “time loss”) on her omitted medical condition claim for surgical scarring.

As we held in Johansen v. SAIF, 158 Or App 672, 976 P2d 84, adh’d, to on recons, 160 Or App 579, 987 P2d [328]*328524, rev den, 329 Or 527 (1999), a new or omitted medical condition claim is to be processed as any other claim. See also ORS 656.267(2)(a) (“Claims properly initiated for new medical conditions and omitted medical conditions related to an initially accepted claim shall be processed pursuant to ORS 656.262”) With regard to the payment of benefits for temporary disability, ORS 656.262(4) provides, in part:

“(a) The first installment of temporary disability compensation shall be paid no later than the 14th day after the subject employer has notice or knowledge of the claim, if the attending physician or nurse practitioner authorized to provide compensable medical services under ORS 656.245 authorizes the payment of temporary disability compensation.”

(Emphasis added.) If there was medical authorization for payment of time loss benefits, Liberty’s duty to begin paying claimant benefits for temporary disability began no later than 14 days after Liberty became aware of the accepted claim for surgical scarring on October 13, 2009, the date the board approved the parties’ stipulation accepting the claim for surgical scarring.

The case thus narrows down to the question addressed in the board’s order: Was there medical authorization for the payment of temporary disability? We explained in Lederer v. Viking Freight, Inc., 193 Or App 226, 237, 89 P3d 1199, adh’d to as modified on recons, 195 Or App 94, 96 P3d 882 (2004), that an authorization of temporary disability benefits is legally sufficient under ORS 656.262(4) when an objectively reasonable insurer or self-insured employer would understand contemporaneous medical reports to signify approval excusing the worker from work. There are several reports in the record that reflect that claimant was disabled from work as a result of surgical scarring at the time the board approved the parties’ stipulation and Liberty’s acceptance of that condition. Of particular significance is the June 5, 2009, report by McNabb in which he addressed the surgical scarring condition and stated:

“I have to concur with the findings of the IME regarding the MRI findings of some scar tissue formation surrounding the thecal sac. This is not truly arachnoiditis, and I do concur with his opinion that [claimant] does not have [329]*329arachnoiditis. Unfortunately, I do feel that she still has significant permanent partial disability due to her scarring and nerve damage that occurred associated with her radiculopathy.”

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Cite This Page — Counsel Stack

Bluebook (online)
341 P.3d 220, 268 Or. App. 325, 2013 Ore. App. LEXIS 1566, Counsel Stack Legal Research, https://law.counselstack.com/opinion/scott-v-liberty-northwest-insurance-orctapp-2014.