Sparling v. Providence Health System Oregon

308 P.3d 1103, 258 Or. App. 275
CourtCourt of Appeals of Oregon
DecidedAugust 21, 2013
Docket1000269; A148031
StatusPublished
Cited by1 cases

This text of 308 P.3d 1103 (Sparling v. Providence Health System Oregon) 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
Sparling v. Providence Health System Oregon, 308 P.3d 1103, 258 Or. App. 275 (Or. Ct. App. 2013).

Opinion

HADLOCK, J.

Claimant and employer both challenge an order of the Workers’ Compensation Board awarding claimant temporary total disability (TTD) benefits as of January 14, 2010. Claimant contends that the board erred by declining to award her TTD benefits starting in either 2008 or 2009; employer argues that the board should not have awarded benefits starting even in 2010. We affirm on both claimant’s petition and employer’s cross-petition.

We describe the pertinent historical facts in accordance with the board’s unchallenged factual findings. Claimant, who worked for employer as an x-ray technologist, suffered a compensable lumbar strain in April 2006 when she tried to prevent a patient from falling. She received treatment from Dr. Tsai, who eventually became her attending physician. Claimant’s lumbar-strain claim was closed in November 2007 with no award of permanent disability benefits, although she did receive TTD benefits for some time.

In late 2007, Tsai reported that he was treating claimant for chronic lower back/sacral pain. Tsai (along with some other physicians who evaluated claimant’s condition) diagnosed sacroiliitis, which is defined as “[inflammation of the sacroiliac joint.” Stedman’s Medical Dictionary 1587 (27th ed 2000). In February 2008, Tsai informed claimant’s employer that he had been treating claimant for sacroiliitis and thought that she could only work four days per week; in March 2008, he recommended further work restrictions. Claimant filed an aggravation claim, which employer denied in March 2008; claimant stopped receiving TTD benefits at that time. In April 2008, Tsai sent a letter to claimant’s attorney indicating that claimant had “chronic low back pain due to sacroiliitis” as well as a radiculopathy.

In May 2008, claimant consulted Dr. Movius, who diagnosed her with a sacroiliac and iliolumbar sprain or strain. As a result of those new diagnoses, claimant filed a post-acceptance claim for lumbar radiculopathy, sacroiliitis, and sacroiliac and iliolumbar ligament strain or sprain, which employer denied in late 2008.

[277]*277In February 2009, Movius reported that claimant had injured her pelvic ligaments during on-the-job accidents. Movius also reported that claimant was “not able to return to the work for which she is trained.” In Movius’s opinion, claimant could sit, stand, or walk for a total of only 30 minutes each hour, with no more than three hours per day of sitting, standing, or walking combined. Movius did not think that sacroiliitis contributed significantly to claimant’s pain. Claimant treated with Movius through August 2009.

In a July 2009 order and an October 2009 order on reconsideration, an administrative law judge (ALJ) upheld employer’s 2008 denial of claimant’s claims for radiculopathy and sacroiliitis, but set aside the denial of claimant’s “sacroiliac and iliolumbar strain condition.” Employer accepted the latter condition on October 22, 2009, and, on that same day, notified claimant that Movius was not qualified to serve as her attending physician.1 The notice further informed claimant that it would not pay TTD benefits that were not authorized by a qualified attending physician or authorized nurse practitioner, and employer subsequently refused to pay TTD benefits.

Claimant requested and received a hearing, during which she argued that she was entitled to TTD benefits “with respect to her newly accepted claims for sacroiliac and iliolumbar strains.” The ALJ rejected that argument, finding that “no attending physician [had] authorized temporary disability with respect to the compensable condition of sacroiliac and iliolumbar strain” and concluding, therefore, that employer had no “obligation to pay temporary disability benefits.” More specifically, the ALJ rejected claimant’s contention that she was entitled to TTD benefits starting either in April 2008 or in early 2010 (as purportedly authorized by Tsai) or starting in March 2009 (as purportedly authorized by Movius).

Claimant sought review before the board, which adopted the ALJ’s factual findings but reversed his determination that claimant was not entitled to TTD benefits starting in 2010. As an initial matter, the board agreed with [278]*278the AL J that, although “Tsai had imposed work restrictions that included a four-day work week” by April 2008, he had not then attributed those restrictions to the accepted condition of sacroiliac and iliolumbar strain “because, at that point, he had not yet diagnosed that condition.” Rather, Tsai “believed that claimant suffered from sacroiliitis,” and his 2008 authorization for TTD benefits was only for that condition, which had been denied. The board rejected the suggestion that Tsai initially had misdiagnosed claimant, noting that, even after Tsai agreed in 2010 that claimant suffered a sacroiliac and iliolumbar strain, he “did not assert that his earlier 2008 authorization for the denied ‘sacroiliitis’ condition was a ‘misdiagnosis’ or that he intended that earlier authorization to be for the compensable ‘sacroiliac/iliolumbar strain.’”

The board also agreed with the ALJ that claimant was not entitled to TTD benefits starting in 2009 based on Movius’s authorization, as Movius was not claimant’s attending physician:

“Only an ‘attending physician’ may authorize the payment of temporary disability compensation. An ‘attending physician’ is ‘a doctor, physician, or physician assistant who is primarily responsible for the treatment of a worker’s compensable injury.’
“Here, the record establishes that Dr. Tsai, not Dr. Movius, was ‘primarily responsible for the treatment of [claimant’s] compensable injury.’”

(Citations omitted; brackets in original.)

The board’s analysis departed from the ALJ’s, however, with respect to claimant’s argument that she became entitled to TTD benefits starting in early 2010. By that point, the board determined, Tsai — still claimant’s attending physician — had agreed that claimant was unable to return to work because of “severe impairment” associated with “the compensable sacroiliac and iliolumbar strain.” The board found that Tsai’s “changed opinion was based on the receipt of new information from Movius (consisting of many pages of medical evaluation and a physical capacity form) and a letter in which she opined that claimant’s sacroiliac and iliolumbar condition would prevent her from returning to [279]*279her regular work.” The board concluded that Tsai’s concurrence with Movius’s opinion “sufficiently authorized temporary disability beginning January 14, 2010,” and, therefore, the board awarded claimant TTD benefits starting on that date. Both parties petitioned for judicial review.

On review, claimant first argues that the board erred in determining that she was not entitled to TTD benefits starting in April 2008. At that point, Tsai had imposed work restrictions that he said were related to claimant’s sacroiliitis. Claimant acknowledges that “sacroiliitis was an unaccepted condition” and, therefore, that she would not be entitled to TTD benefits associated with that condition. Nonetheless, she asserts, “Tsai later identified [her] low back pain as a sacroiliac and iliolumbar strain.” Because those conditions had been accepted, claimant argues, she was entitled to TTD benefits dating back to 2008, when Tsai first reported that she had only a limited ability to work.

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Cite This Page — Counsel Stack

Bluebook (online)
308 P.3d 1103, 258 Or. App. 275, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sparling-v-providence-health-system-oregon-orctapp-2013.