SBH Quarterly - Sather, Byerly and Holloway, LLP

June 2014 SBH Quarterly
workers’ compensation Medical Treatment and Consequential Conditions
Contents The Workers’ Compensation Board and Court of Appeals have long held when reasonable and necessary treatment for a compensable condition represents the major contributing cause of a new injury, the new injury is compensable as a consequential condition. See Barrett Business Services v. Hames, 130 Or App 190 rev den, 320 Or 492 (1994); Joseph P. Lovett, 57 Van Natta 939 (2005). In Juan A. Arenas‐Raya, 66 Van Natta 590 (2014), the Board introduced a new twist. SAIF accepted a low back injury claim for L5 and S1 radiculopathy. The claimant initially treated conservatively, either at the recommendation of his attending physician or out of personal preference. He ultimately underwent surgery. In the interim, the attending physician diagnosed myofascial pain syndrome and pain sensitization syndrome. SAIF denied both conditions in response to an expansion request. Applying a “consequential condition” analysis, the Administrative Law Judge (ALJ) concluded the persuasive medical evidence was sufficient to establish compensability and set aside SAIF’s denial. On appeal, the Board affirmed. It reasoned the attending physician’s opinion attributing myofascial pain syndrome to the “prolonged time between the work injury and surgical intervention” was sufficient to meet claimant’s burden of proof. Board Member Langer dissented, concluding the attending physician’s opinion was ambiguous and inadequately reasoned. She did not otherwise reject the underlying compensability analysis. Main Articles 1 Unexplained Falls 2 Appellate Update 4 Highlights Upcoming Events 2 Deborah Sather Retires 4 SBH News 5 This case affirms the availability of a “consequential condition” theory of compensability not only cases where new conditions arise as a direct result of medical treatment or delay in treatment, but also in cases where alternative modalities displace treatment that might have prevented the new condition. The case suggests employers and insurers can become responsible for conditions resulting from poor treatment choices by a doctor or a claimant. Continued on page 2 Medical Services 2 Lance Johnson assists Oregon and Washington clients. Contact him at [email protected] Medical Treatment and Consequential Conditions (cont) It seems to contradict ORS 656.325(2), which provides: For any period of time during which any worker commits insanitary or injurious practices which tend to either imperil or retard recovery of the worker, or refuses to submit to such medical or surgical treatment as is reasonably essential to promote recovery, or fails to participate in a program of physical rehabilitation, the right of the worker to compensation shall be suspended with the consent of the director… Note the jurisdictional distinction. While the director has the authority to suspend compensation, the compensability of a consequential condition falls within the Board’s jurisdiction. Regardless of claim status, securing regular updated opinions addressing the scope of medical treatment may trigger claim processing and reduce exposure. The risk of incurring responsibility for conditions caused by a lack of treatment may require more proactive use of failure‐to‐treat letters and ORS 656.325(2) to push claimants to actively engage in treatment. When a truly unexplained fall occurs, the worker must eliminate idiopathic causes. What Is A Truly Unexplained Fall?
Last year, the Court of Appeals addressed the compensability of workplace falls after a cashier fainted on a brick floor at work. Hamilton v. SAIF, 256 Or App 256 (2013). Like all work injuries, claimant must establish the accidental injury both arose out of (AOE) and in the course of (COE) her employment. Because the parties agreed claimant’s injury met the COE prong, and also agreed claimant’s fall was due to idiopathic factors (factors unique to claimant), claimant needed to identify a work related factor that caused or contributed to her fall. Claimant unsuccessfully argued standing on hard floor was such a work related risk and therefore her injury was not compensable. The Court acknowledged a fall due to idiopathic (personal) causes is not compensable, neither is one where idiopathic and work factors are equally possible. However, a truly unexplained fall can be compensable if the employee eliminates the idiopathic causes. Because the parties in Hamilton agreed the fall was due to idiopathic causes, the court did not address one of the more perplexing legal standards – the truly unexplained fall. Out and About 2014 SBH Attorneys at WSIA Conference Bruce, Aaron, Lauren, Sarah, Stephen, LeeAnn Since Hamilton, the Workers’ Compensation Board has issued four opinions regarding workplace falls‐ two were compensable and two were not compensable. The first decision was Rosanna L. Jakobson, 65 Van Natta 1513 (2013). There, a punch press operator fell at work while performing her Continued on page 3 April Rains, Llara Olivarez, Marie Mallory and Sarah Ewing at Girl’s on the Run annual fundraiser 3
Truly Unexplained Falls (cont.) normal job duties. The attending physician stated it was “very unlikely” claimant’s increased blood pressure and anti‐depressant medication, or her prior history of fainting spells, contributed to the fall. The Board concluded this was sufficient to eliminate the idiopathic factors, and therefore the injury was a truly unexplained fall, which arose out of her employment. Similarly, a hospital kitchen worker who fell at work established a compensable injury. Janet G. Cavalliere, 66 Van Natta 228 (2014). Her attending physician could not eliminate personal factors as possible causes of the fall, which should have been enough to conclude this was an idiopathic fall (and therefore not compensable). The Board avoided this issue by stating claimant’s required non‐skid shoes were an employment risk. Judge Langer dissented arguing an “unexplained fall” is a question of fact, and only decided by eliminating the personal factors first. The Board’s two most recent decisions affirmed the employer’s denial. Catherine Sheldon, 66 Van Natta 275 (2014); Rachel Romero, 66 Van Natta 636 (2014). In Sheldon, claimant fell while walking across the lobby where her employer leased office space. The medical evidence unanimously and unequivocally stated claimant’s long history of diabetic complications could not be ruled out as potential causes of her fall. Similarly, in Romero, claimant fell while walking along a sidewalk to work. Two physicians stated the fall was solely due to her history of myopathy, two other physicians could not rule out the myopathy as a possible cause. In both cases, the Board affirmed the denial explaining the claimant could not eliminate the idiopathic factors and therefore did not have a truly unexplained fall. While these fall cases focus on the AOE prong, it is worth noting the employers both preserved strong arguments regarding the COE prong too. We are likely to see the Court of Appeals issue a decision addressing truly unexplained falls sometime in the near future since three of these cases are on appeal. For now, claimants will likely try to show some defect in the employer’s floor or a work requirement (such as a non‐skid shoe) was the cause of the fall. The Board case that identified a shoe as the cause of the fall appears to be the anomaly though. The other three cases look at whether the employee ruled out personal factors before trying to identify any work related condition. Without clarification from the court though, this continues to be a very fact specific analysis. Persuasive medical opinions explaining why a worker’s fall was due solely to idiopathic factors will still support a denial. Even conclusions that idiopathic factors cannot be eliminated as a possible cause should support a denial. Upcoming Events Save the Date! SBH Annual Oregon Workshop October 24, 2014 Watch for details at Want updates on events and important changes to the law? Sign up for our blog at: Kevin Anderson assists Oregon clients on workers’ compensation matters. Contact him at [email protected]
4 Appellate Update Schleiss v SAIF Corporation, 354 Or 637 (2013) The Supreme Court held that PPD could only be apportioned between the compensable injury and legally recognized preexisting conditions. In a case that did not involve a combined condition, an arbiter indicated that impairment was 33% due to injury and 67% due to degenerative joint disease and smoking. The ALJ, Board, and Court of Appeals affirmed this impairment apportionment based on OAR 436‐035‐0013(1), which states that only findings attributed to the accepted conditions receive a value. The worker challenged the rule as inconsistent with the statutes, and creating a run‐around the combined condition process. The Court agreed with the worker, that because the degenerative joint disease and smoking did not qualify on this record as preexisting conditions under the statute, no apportionment was allowed. Central Oregon Intergovernmental Council v Albert, 260 Or App 640 (2014) The Court of Appeals held that whether a worker is released to regular work should not be based on DOT codes. Following a reconsideration process and arbiter exam, the Board concluded the worker was not released to regular work by referencing a DOT code for a “forestry worker”. It relied on its own comparison of claimant’s abilities to this DOT code, while ignoring a physician’s approval of a job analysis. The employer challenged the Board’s reliance on the DOT code to determine a regular work release, and the court agreed. It held that a worker’s release to regular work must be based on the factual evidence, not a DOT code; the ARU and Board can only rely on DOT codes to calculate benefits when a worker has been found entitled to work disability. Brown v SAIF Corp, ‐‐‐ Or App ‐‐‐ (May 7, 2014) The Court of Appeals held that the “otherwise compensable injury” in a combined condition is the injury incident, not the accepted condition. Following litigation, SAIF was ordered to accept a lumbar strain combined with lumbar disc disease and spondylolisthesis. SAIF issued a current combined condition denial based on evidence that the strain had resolved. An ALJ and then the Board upheld the denial. The Court of Appeals reversed, holding that the wrong standard had been applied. Citing to the statutory definition of an “otherwise compensable injury” and legislative testimony at the time the combined condition statute was enacted, the Court determined that the proper inquiry is whether the injury incident had ceased to be the major contributing cause. SAIF Corp v Carlos‐Macias, ‐‐‐ Or App ‐‐ (May 7, 2014) The Court held a diagnostic service is compensable if needed to explore the cause or extent of a compensable injury. Here, SAIF accepted an shoulder strain and tendinitis. Claimant continued to have pain after claim closure; a physician recommended an EMG and bone scan to determine the extent of the injury. After investigation, SAIF declined to authorize the tests and denied the current condition. While the current condition denial was affirmed, both the Court and the Board determined both tests were compensable based on the expert’s opinion the tests would help determine the extent of the injury, even though the tests were not for either accepted condition. Rebecca Watkins manages appeals for SBH. Contact her at [email protected] 5 SBH NEWS New members of the SBH family… Sather, Byerly & Holloway LLP 111 SW Fifth Ave, Suite 1200 Portland, OR 97204 (503) 225‐5858 Find us on the web: litigation and consultation services to employers, insurers, and claims professionals in the Pacific Northwest. SBH assists clients with workers’ compensation, long shore, employee policies & records, return to work programs, leave administration, OSHA/WISHA compliance, ADA accommodations, discrimination, hiring & firing, wage & hour, and more. is pleased to introduce Attorney
Stephen Scott
in Oregon and Washington workers’ compensation. Nothing in this newsletter should be construed as legal advice. If you have specific questions about a claim, please Addison 2.20.14 (Hollie Felisiano) Sather, Byerly & Holloway, LLP
This newsletter is designed as an educational tool to keep you informed of legal changes contact an attorney. Ellison 12.30.13 (Lauren Oda) SBH is a specialized law firm offering comprehensive McKenna 12.8.13 (Sarah Ewing) Evangeline 12.3.13 (LeeAnn Lowe) Attorney
Megan Vaniman