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Frey v. Willamette Industries Inc.

May 14, 1973

FREY, RESPONDENT,
v.
WILLAMETTE INDUSTRIES, INC., APPELLANT



Appeal from Circuit Court, Polk County. Darrell J. Williams, Judge. No. 20070.

George M. Joseph, Portland, argued the cause for appellant. With him on the brief were Bemis, Breathouwer & Joseph and Roger R. Warren, Portland.

Robert J. Thorbeck, Salem, argued the cause for respondent. With him on the brief were Lafky & Drake, Salem.

Langtry, Judge. Schwab, Chief Judge, and Fort, Judge.

Langtry

This is a workmen's compensation case involving an alleged occupational disease. The defendant-employer initially rejected the claim and at the request of claimant a hearing was held. The hearing officer ordered the defendant to pay the claim and pursuant to ORS 656.808 the defendant rejected the order, which constituted an appeal of the hearing officer's decision to a medical board of review. Defendant also appealed to the circuit court pursuant to ORS 656.810

(4) the denial by the hearing officer of motions to dismiss, continue the hearing, and stay the claim. This appeal is from the decision of the circuit court affirming the denial of those motions.

Claimant was 64 years old and had been in defendant's employ in a lumber mill for nearly 48 years. In December 1970 his doctor advised him that his hypertension and high blood pressure required that he stop such employment. In 1969 claimant's trouble had become symptomatic when a severe, spontaneous nose bleed occurred while he was on the job. He consulted his family physician and was given medication. He was then referred to a specialist, Dr. Carey, who diagnosed the high blood pressure and hypertension, saying it was caused by physical and nervous exhaustion and advised against returning to work until he calmed down. He took a three-week rest but soon after he returned to work his symptoms reappeared. Toward the end of 1970 the symptoms were severe enough that on December 4, 1970, upon the advice of Dr. Carey not to return to his employment any longer, he did terminate it. On December 10 claimant filed an occupational disease claim in which he gave the names and addresses of his family doctor (Dr. Regier) and Dr. Carey. The defendant's insurance carrier, without seeking medical information, denied the claim in a letter dated December 21, 1970.

Claimant immediately requested a hearing which was set for March 5, 1971. On February 3 the carrier requested information from Dr. Regier only. On February 19 defendant's attorney obtained a postponement of the hearing date on the ground he would be unable to attend on the scheduled date. On February 22 defendant requested an examination of claimant by Dr. Hickman, a certified clinical psychologist. Upon

advice of his counsel claimant refused this examination but on February 23 a copy of Dr. Carey's report was provided the carrier. The report contained the history of claimant's nervous condition and high blood pressure.

On March 8 the hearing was reset to March 15 by mutual agreement of counsel. On March 10 the medical information requested from Dr. Regier was received by defendant's carrier. On March 11 defendant's counsel talked to Dr. Carey on the telephone.

At the hearing, the defendant moved (1) to dismiss the claim as untimely filed under ORS 656.807, (2) to stay the hearing because claimant had refused to submit to an examination by Dr. Hickman pursuant to ORS 656.325, (3) to postpone the hearing because of insufficient notice, (4) to require the claimant to be examined by Dr. Hickman, or Dr. Wayne Rogers, a cardiovascular specialist, and (5) for a continuance in order to cross-examine Dr. Carey and Dr. Regier. The motions were denied except that the motion for a continuance ...


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